UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


LAWS  OF  BUSINESS 


All  the  States  and  Territories 


OF   THE    UNION 


AND  THE 


DOMINION    OF   CANADA. 


FORMS    AND    DIRECTIONS    FOR   ALL   TRANSACTIONS, 


ABSTRACTS   OF    THE   LAWS    OF    ALL   THE   STATES  AND 
TERRITORIES    ON   VARIOUS    TOPICS. 


BY 


THEOPHILUS    PARSONS,  LL.D., 

LATE  PROFESSOR  OF   LAW   IN    HARVARD  UXI\'ERSITY,  CAMBRIDGE,  AND  AUTHOR  OF  TREATISES  ON  THB 

LAW  OF  CONTRACTS,  ON  MERCANTILE  LAW,  ON  THE  LAW  OF  PARTNERSHIP,  ON  THE   LAWS 

OF  PROMISSORY  NOTES  AND  BILLS  OF  EXCHANGE,  ON  THE  LAW  OF  INSURANCE, 

AND   ON    THE   LAW  OF  SHIPPING  AND   ADMIRALTY. 


NEW  REVISED    EDITION. 


HARTFORD: 

S.    S.    SCRANTON    &    CO. 

1895. 


Copyright,  1893,  by 
S.  S.  SCRANTON  &  CO. 

(  Ay 


GIFT      OF 

E,  J. MARSHALL  JR. 


CONTENTS. 


CHAPTER  I. 

THE  PURPOSE  AND  USE  OF  THIS  BOOK. 

PAGE. 

To  fully  and  clearly  explain  the  Laws  of  Business,       ....       23 

CHAPTER  H. 

BUSINESS  LAW  IN  GENERAL. 
The  Principles  on  which  it  rests, •        •      2;> 

CHAPTER  HI. 

INFANTS  OR  MINORS. 
Form  I. — Promise  in  Writing,         .        .        .        .        •        •        »        •34 

CHAPTER  IV. 
APPRENTICES. 

Form  2. — A  General    Indenture  of  Apprenticeship  as  sometimes  used 

in  New  England, 35 

3. — Shorter  Indenture  of  Apprenticeship, 36 

CHAPTER  V. 

MARRIED  WOMEN. 
Abstract  of  the  Law  of  Husband  and  Wife  in  the  Several  States,         .       40 

(3) 


CONTENTS. 


Eorfns. 

PAGE. 

Form  4. — Indenture  to  put  in  Trust  the  Property  of  an  Unmarried 

Woman 60 

5. — Anotlier   Form   of  Indenture   in  Trust,  for  Property  of  Un- 
married Women, ,        .       64 


CHAPTER  VI. 

AGREEMENT  AND  ASSENT. 

Section      I. — The  Legal  Meaning  of  Agreement,         .        •        .        ,  67 

II. — What  is  an  Assent,    .         .         .         .*...,  69 

III. — Offers  made  on  Time, "jo 

IV. — A  Bargain  by  Correspondence,         .....  71 
V. — What    Evidence    may  be  received   in    Reference   to   a 

Written  Contract, '72 

VI. — Custom  or  Usage, ,        .  74 

Forjns. 

form  6. — General  Agreement,  sufficient  for  many  Purposes,        .        ,  77 

7. — General  Agreement,  as  used  in  the  Western  States,     •         .  yj 

8. — General  Contract  for  Mechanic's  Work,        .         ...  78 
9. — Agreement  for   Purchase  and   Sale  of  Land,  in  Use  in  the 

Middle  States, 79 

ID.—  Agreement  for  Sale  of  Land,  in  Use  in  the  Western  States,  79 

II. — Agreement  for  Warranty  Deed,  used  in  the  Western  States,  82 

12. — Contract  to  convey  Real  Estate,  in  use  in  the  Middle  States,  82 
13. — Agreement  for  the   Purchase  of  an   Estate,  in  use  in  New 

England,     ..........  84 

14. — Agreement  for  the  Sale  of  an   Estate  by  Private  Contract,  87 
15. — Agreement  to  be  signed  by  an  Auctioneer,  after  a  Sale  by 

Auction, 87 

16. — Agreement  to  be  signed  by  the  Purchaser,  after  a  Sale  by 

Auction,     ..........  88 

17. — Agreement  to  make  an  Assignment  of  a  Lease,  ...  88 
18. — Agreement  for  making  a  Quantity  of  Manufactured  Articles,  88 
19. — Agreement  between  a  Trader  and  a  Bookkeeper,  ...  89 
20. — Agreement  for  Damages  in  laying  out  or  altering  Road,  .  90 
21. — Agreement  between  a  Person  who  is  retiring  from  the 
Active  Part  of  a  Business,  and  Another  who  is  to  con- 
duct the  same  for  their  Mutual  Benefit,     ....  90 


CONTENTS.  5 

FAIE. 

Form  22. — Brief  Building  Contract, 92 

23. — Full  and  Minute  Building  Contract, 93 


CHAPTER  VII. 
CONSIDERATION. 

Section  I. — The  need  of  a  Consideration, 9(7 

II. — What  is  a  sufficient  Consideration, 98 

III. — Illegal  Consideration •        .         .         .  loi 

IV. — Impossible  Considerat'on, loi 

V. — Failure  of  Consideration, [02 


CHAPTER  VHI. 

BONDS. 

Essentials  of  a  Bond, 104 

"Condition"  of  the  Bond, IC5 

FortJis. 

Form  25. — Simple  Bond,  without  Condition, 106 

26. —  Bond  for  Payment  of  Money,  with  a  Condition  to  that 
Effect,  with  Power  of  Attorney  to  confess  Judgment 
annexed,     .         .         .         .         .         .         .         .         .         .106 

27. — Bond  for  Conveyance  of  a  Parcel  of  Land,  .         .         .         .107 

28. — Bond  for  a  Deed  of    Land,  with   Acknowledgment  before 

Notary  Public, i"8 

29. — Bond    in    Another  Form,  for    Conveyance    of    Land,    with 

Acknowledgment,       .         .         .         .         .         .         .         .109 

30. — Bond  to  Corporation  for  Payment  of  Money  due  for  Con- 
tribution to  Capital  Stock,  with  Power  of  Attorney  to 
confess  Judgment,      . IIO 


CHAPTER  IX. 

ASSIGNMENTS. 
Instruments  to  which  the  term  is  particularly  given,      *.        .        ,        •      '■'^ 


COA'TEJVTS. 


Forms. 


Form  31. — Brief  Form  of  an  Assignment  to  be  indorsed  on  a  note,  or 

any  Similar  Promise  or  Agreement,  .         .         .         .         .113 
32. — General  Assignment,  witli  Power  of  Attorney,    .         .         .113 

33. — Assignment  of  a  Bond, 114 

34. — Assignment  of  a   Bond,   with   Power  of  Attorney,  and  a 

Covenant,  .         .         .         .         .  .         .         .114 

35. — Assignment  of  a  Judgment,  in  the  Form  of  an  Indenture,     115 
36. — Assignment  of  Wages,  with  Power  of  Attorney,        ,        .     11 5 


CHAPTER  X. 

SALES  OF  PERSONAL  PROPERTY. 

Section  \. — What  constitutes  a  Sale, ii^ 

II. — Delivery  and  its  Incidents,  .......  i2j 

III. — Contracts  Void  for  Illegality  or  Fraud,         ....  126 

IV. — Sales  with  Warranty, 128 

ForjHS. 

Form  37. — Bill  of  Sale  of  Personal  Property, 131 

38. — Bill  of  Sale  of  Personal    Property,  with    a    Condition   to 

make  it  a  Mortgage  with  Power  of  Sale,  ....     132 


Section  V. — The  Sale  of  One's  Business, I 


33 


CHAPIER  XI. 

STOPPA'^E  IN  TRANSITU. 

Derivation  and  Meaning  of  the  Term, ,        ,     I34 

Rights  of  Parties  in  Goods  in  Transitu, 134 


CHAPTER  XH. 
GUARANTY. 

Fo7-ins. 

Form  39. — Guaranty  to  be  indorsed  on  Note,        .        .        .        ;        .     ^4^" 
40. — Guaranty  of  a  Note  on  Separate  Paper,       ....     I4c 


CONTENTS. 


7 


PAGE. 

Form  41. — Guaranty  in  Another  way, 140 

42. — Letter  of  Guaranty, (41 

43. — Guaranty  with  Collaterals,  authorizing  Sale,        .         .         .      141 
44. — Guaranty  with  Collaterals,  promising  Additional  Security,  or 

authorizing  Sale, .141 


CHAPTER  XIII. 

THE  STATUTE  OF  FRAUDS. 

Section  I. — Its  Purpose  and  General  Provisions,           .         .         .        ,  142 

II. — Promise  to  pay  the  Debt  of  Another,          ....  143 

III. — Agreement  not  to  be  performed  within  a  year,  .        .         .  145 

IV. — The  Form  and  Subject-Matter  of  Agreement,   .        .        .  146 

CHAPTER  XIV. 

PAYMENT  AND  TENDER. 

Section  I. — How  Payment  may  be  made, 14) 

II. — Appropriation  of  Payment, 149 

CHAPTER  XV. 

RECEIPTS  AND  RELEASES. 

Remarks  on  the  Nature  of  Receipts,  and  Degrees  of  Fullness  thereof,  iqc 

jForms. 

Form  45. — Receipt  for  Money, 150 

46. — Another  Form  of  Receipt  for  Money,          .         .         .  150 

47. — Receipt  for  Papers  or  other  Articles, 150 

48. — General  Release,  .         .         .         .         .         .         .         -151 

49. — Mutual  General  Release  by  Indenture,        .        .         .         .152 

S^-. — Release  from  Creditors  to  a  Debtor,  under  a  Composition,  152 

51. — Release  of  all  Legacies, 152 

52. — Release  of  a  Bond,  it  being  lost, IS3 

53. — Release  of  a  Judgment, 154 

54. — Release  of  a  Condition, ISS 

55. — Release  of  a  Covenant  contained  in  an  Indenture  of  Lease.  155 

56. — Release  in  Zxtinguishment  of  a  Power,       ....  156 


g  CONTENTS. 


FAGB. 


Form  47. — Release  from  a  Lessor  to  a  Lessee  (upon  his  surrendering 

his  Lease)  from  the  Covenants  therein,     .         .         .         .156 

58. — General  Release  of  Dower, ic^ 

59. — Release  of  Dower  to  the  Heir, 157 

60. — Release  of  Dower  in  Consideration  of  an  Annuity  given  by 

Will, .      ♦.         .158 

61. — Release  of  Dower  when  the  Husband  of  the  Widow  joins  in 

the  Deed, 158 

62. — Release  of  a  Trust, 159 

63. — Release  of  Right  to  Lands, 160 

64. — Release  between  two  Traders  in  Settling  Accounts,  .        .     160 


CHAPTER  XVI. 

NOTES  OF  HAND  AND  BILLS  OF  EXCHANGE,  DRAFTS 
AND    CHECKS. 

Section  L — The  Purpose  of,  and  the  Parties  to,  such  Papers,        .        .     i6t 

Forms. 

Form  65. — Common  Form  of  a  Bill  of  Exchange,         ....     162 
•   66. — Common  Form  of  a  Promissory  Note,         ....     163 

Section  II. — What  is  Essential  to  a  Negotiable  Note  or  Bill,        .         .     168 


Tonns. 


Form  67. — Form  of  a  Note  given  for  a  Chattel  sold,  with  a  Condition 
preserving  the  Ownership  of  the  Seller,    . 

Section  III. — Consideration  of  Negotiable  Paper, 

IV. — Rights  and  Duties  of  the  Maker,     .... 
V. — Rights  and  Duties  of  the  Holder  of  Negotiable  Paper, 
.VI. — Rights  and  Duties  of  the  Indorser,  .... 
VII. — Rights  and  Duties  ci  the  Acceptor, 
VIII. — Acceptance  or  Payment  for  Honor,  . 

T'o?'fns. 


170 

176 
179 
179 
191 

19s 
196 


Form  68. — Judgment  Note,  with  Waiver, ic,^ 

69. — Judgment  Note,  with  Waiver  and  Power  of  Attorney,          .  I9.'{ 

70. — Notarial  Protest  and  Notice, 200 

Abstract  of  Days  of  Grace  and  Holidays  in  all  the  States,   .         .         .  201 


CONTENTS, 


CHAPTER  XVII. 


AGENCY. 

Section  I. — Agency  in  General, 

II. — How  Authority  may  be  given  to  an  Agent, 
III. — Extent  and  Duration  of  Authority,     . 
IV. — Execution  of  Authority,       .... 

V. — Liability  of  an  Agent, 

VI. — Rights  of  Action  growing  out  of  Agency,  . 
VII. — How  a  Principal  is  affected  by  the  Acts  of  his  Agent 
yill. — Mutual  Rights  and  Duties  of  Principal  and  Agent, 
IX. — Factors  and  Brokers, 


PAGE. 

207 
209 

212 

214 
215 

215 

216 
217 
220 


Forins, 

Form  71. — Power  of  Attorney, 223 

72. — Power  of  Substitution, . 224 

73. — Power  of  Attorney  in  a  Shorter  Form,  ....  224 
74. — Full  Power  of  Attorney  to  Demand  and  Recover  Debts,  .  225 
T^. — Power  of  Attorney  to  Sell  and  Deliver  Chattels,  .  .  226 
76. — Power  of  Attorney  given  by  Seller  to  Buyer,  .  .  .  226 
77. — Power  of  Attorney  to  sell  Shares  of  Stock,  with  Appoint- 
ment by  Attorney  of  Substitute, 226 

78. — Power  of  Attorney  to  subscribe  for  Stock,  ....  227 

79. — Proxy  or  Power  of  Attorney  to  Vote, 227 

80. — Proxy  Revoking  all  Previous  Proxies,         ....  227 

81. — Proxy  with  Affidavit  of  Ownership,  in  use  in  New  York,     .  227 

82. — Power  to  receive  Dividend, 22S 


CHAPTER  XVIII. 


PARTNERSHIP. 

Ser "^ion  I. — What  a  Partnership  is, 

II. — How  a  Partnership  may  be  Formed,  ..... 

III. — How  a  Partnership  may  be  Dissolved,       .         .         .         . 
IV. — Property  of  the  Partnership, 

V. — Authority  of  each  Partner,  and  the  Joint  Liability  of  the 
Partnership, 

VI.— Remedies  of  Partners  against  each  other, 
VII. — Right  of  the  Firm  against  Third  Parties, 


228 
229 
231 

233 

234 
239 
240 


10  CONTENTS. 

PAGE. 

Section  VIII. — .'Rights  of  Creditors  in  Respect  to  Funds,     .        .         .241 

IX. — EiJacts  of  Dissolution, 243 

X. — Limited  Partnership, .     244 

Fortns. 

Form  83.— Articles  of  Copartne/ship  between  two  Tradesmen,     .         .  245 

84 — Short  Form  of  Articles  of  Copartnership,     ....  247 
8j, — Certificate  of  a  Limited  iartnership,  with  Acknowledgment 

and  Oath, 249 


CHAPTER  XIX. 

ARBITRATION. 

Section  I. — The  Submission  and  Award, 25c 

II.— Revocation  of  a  Submission  to  Arbitrators,         ...     25-:] 

Fo7'ms. 

Form  86. — Simple  Agreement  to  Refer, 256 

87. — Arbitration  Bond.     One  or  more  Arbitrators,     .         .         .     256 
88. — Award  of  Arbitrators, 257 


CHAPTER    XX. 

THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

Section  I. — A  Private  Carrier,       ........  257 

II. — The  Common  Carrier,  .......  258 

III. — Obligation  of  Common  Carrier  to  receive  and  carry  Goods 

and  Passengers, 261 

IV. — The  Lien  of  the  Common  Carrier, 266 

V. — Liability  of  the  Common  Carrier, 266 

VI. — The  Carrier  of  Passengers, 268 

VII. — Notice  by  the  Carrier  Respecting  his  Liability,   .         .         .  269 

VIII. — The  Carrier's  Liability  for  Goods  carried  by  Passengers,  .  271 

Forms. 

Form  89. — Steam  Packet  Company's  Receipt, 274 

90. — Express  Company's  Receipt,      ..••.«.  274 


CONTENTS 


II 


CHAPTER  XXI. 

PACK 

HOTEL-KEEPERS,  INN-KEEPERS,  AND  BOARDING-HOUSE- 
KEEPERS. 

The  Rights,  Duties,  and  Liabilities  of,  and  the  distinction  between, 

Hotel-keepers  and  Boarding-house-keepers, 276 


CHAPTER  XXn. 


LIMITATIONS. 

Section  I. — Statute  of  Limitations, 

II. — Construction  of  the  Statute, 
III. — The  New  Promise, 
IV. — Part  Payment,      . 
V. — Some  Statutory  Exceptions, 
VI. — When  the  Period  of  Limitation  begins. 
VII. — The  Statute  does  not  affect  Collateral  Security, 

Abstract  of  the  Statutes  of  Limitation  of  all  the  States, 


278 
27c 
28c 
281 
28; 
283 
28J 

284 


CHAPTER  XXHI. 


INTEREST  AND  USURY. 

Section  I.— What  Interest  is,  and  Wlien  it  is  Due,       ....  30c 

II. — Charge  for  Risk  or  for  Service, 305 

III. — Sale  of  Notes, 306 

IV. — Compound  Interest, 307 

Abstract  of  the  Usury  Laws  of  the  States, 3o8 


CHAPTER  XXIV. 


THE  LAW  OF  PLACE. 

Section  I. — What  is  meant  by  the  Law  of  Place,  . 

II. — General  Principles  of  the  Law  of  Place, 
III. — Place  of  the  Contract, 
IV. — Domicil, 


312 
312 
314 
315 


12 


CONTENTS. 


CHAPTER  XXV. 


THE  LAW  OF  SHIPPING. 


Section  I. — Ownership  and  Transfer  of  Ships, 
II. — Transfer  of  Property  in  a  Ship, 
III. — Part-Owners, 
IV. — Liability  of  Mortgagees, 
V. — Contract  of  Bottomry, 
VI. — Employment  of  a  Ship  by  the  0\ 
VII. — Charter  Parties, 
VIII. — General  Average, 
IX. — Salvage, 

X. — Navigation  of  the  Ship, 
Xl.^Seamen, 
XII.— Pilots, 
XI 1 1.— Material-Men, 


PAGE. 

321 

325 
32s 
327 

334 
338 
342 
346 
350 
353 
354 


Form  91 
92 
93 
94 
95 
96, 

97 

98 

99. 

100, 


Forms. 

— Bill  of  Sale  of  Vessel, 355 

— Mortgage  of  a  Vessel, 357 

—Charter  Party, 359 

—Bill  of  Lading, 360 

— Shipping  Articles  in  Common  Use,       .....  361 

— Bottomry  Bond, 364 

— Oath  or  Ailirmation  of  Consignee  or  Agent,        .         .         .  365 

Custom-House  Power  of  Attorney,  No.  201,       .         .         .  .366 

Maritime  Protest, 3^7 

Steamboat  Warrant,  as  used  in  the  Western  States,    .  369 


CHAPTER  XXVI. 


MARINE  INSURANCE. 

Section  I. — How  the  Contract  of  Insurance  is  made, 
II. — Interest  of  the  Insured, 
III. — Interest  which  may  be  insured,  . 
IV. — Prior  Insurance,  .... 
V. — Double  Insurance  and  Re-insurance, 
VI. — Memorandum,      .... 
VII. — Express  Warranties,  . 
VIII. — Implied  Warranties,    ... 


369 
372 
374 
377 
378 
379 
379 
381 


CONTENTS. 


13 


Section    IX. — Representation  and  Concealment,   . 

X. — What  tilings  should  be  cc  nmunicated, 
XI. — Premium,  ..... 

XII. — Descripiion  of  the  Property  Insured, 
XIII. — Perils  covered  by  the  Policy, 
XIV.— Perils  of  the  Sea,     . 

XV. — Collision, 
XVI.— Fire,  .... 

XVII.— Piracy,  Robbery,  or  Theft, 
XVIII.— Barratry, 
XIX. — Capture,  Arrest,  and  Detention, 

XX. — General  Clause, 
XXI. — Prohibited  Trade,    , 
XXII. — Deviation, 
XXIII. — Termini  of  the  Voyage,  and  of  the  Risk, 
XXIV. — Total  Loss  and  Abandonment, 


383 
384 
38s 
386 

387 
388 

389 
389 
389 
390 
390 
391 
391 
392 
394 
396 


Fonn. 


Form  loi. — Abandonment,     . 


.     3;^ 


Section  XXV. — General  Average, 
XXVI.— Partial  Loss, 


402 
403 


CHAPTER  XXVII. 

FIRE  INSURANCE. 

Section  I. — Usual  Subject  and  Form  of  the  Insurance,        •        •        .  405 

II. — Construction  of  Policies  against  Fire,         ....  408 

III. — Interest  pf  the  Insured, 414 

IV. — Double  Insurance, 416 

V. — Warranty  and  Representation, 417 

VI. — Risk  incurred  by  the  Insured, 421 

VII. — Valuation, 422 

VIII. — Alienation, 423 

IX.— Notice  and  Proof, 424 

X. — Adjustment  and  Loss, 425 


For7ns. 

Form   102. — Immediate  Notice  of  Loss,         .... 
103. — Notice,  with  Certificate  of  Magistrate, 
104. — Assignment  of  a  Policy  to  be  indorsed  thereon, 
105. — Transfer  and  Assignment  of  Policy, 


426 
427 
428 
429 


14 


CONTENTS. 
CHAPTER   XXVIII. 

LIFE   INSURANCE. 


Section  I. — Purpose  and  Method  of  Life  Insurance,     , 
II. — Premium,     ....... 

III. — Restrictions  and  Exceptions  in  Life  Policies, 
IV. — Interest  of  tlie  Insured,       .... 

V. — Assignment  of  a  Life  Policy, 
VI. — Warranty,  Representation,  and  Onceaiment, 
VII. — Insurance  against  Accident,  Di.s-.;ase,  and  Dishonesty  of 

Servants, 439 


PAGE. 

431 
432 

434 
434 

435 


CHAPTFR  XXIX. 

DEEDS  CONVEYING  LAND. 

Section  I. — What  is  Essential  >o  such  Deeds,       .        ,        .        •        .  440 

II. — Usual  Clauses  in  Deeds,     ...«.,«  445 

Forms. 

Form   106. — Deed  Poll  uf  Warranty,  in  Common  use  in  New  England,  45^ 

107. — Deed  of   jift  by  Indenture,  without  any  Warranty  whatever,  453 

108. — Deed  oi   Bargain  and  Sale,  without  any  Warranty,  .         .  454 

109. — Quit-', laim  Deed,  without  any  Warranty,  .         .         .         .  455 

no. — Dep  i  Poll  of  Release  and  Conveyance;  short  Form,        .  45" 

III. — D  .ed,  with  Special  Warranty  against  the  Grantor  only,    .  457 

112. — '^uit-Claim  Deed  (long  Form),  Homestead  Waiver,  .  .  45^ 
113.-    Deed,  with  Covenant  against  Grantor,  without  Release  of 

Homestead  or  Dower, 459 

114. — Separate  Relinquishment  of  Homestead  and  Dower  in 

Land  sold  under  Execution, 461 

115. — Full  Warranty  Deed,  by  Indenture,  without  Release  of 

Homestead  or  Dower, 4^2 

116. — Warranty  Deed  (short  Form),  with  release  of  Homestead 

and  Dower, 464 

1 1 7. — Warranty  Deed,  with  Covenant  against  Nuisances,  without 

Release  of  Homestead  or  Dower,  ....  465 
1 18-142. — Forms  of  Deeds  in  use  in  various  States,  .         .    467—500 

143. — Bond  for  a  Deed, 5°! 

144. — Contract  for  Sale  of  Land,  with  Penal  Obligation,     .        .  501 


CONTENTS.  J  e 

PAGF. 

Form  145. — Power  of  Attorney  to  sell  Lands, 502 

146. — Trust  Deed   for  the  Benefit  of   a  Wife,  or   some  other 

Person, 504 

147. — Trust  Deed  to  secure  Payment  of  a  Note  without  Re- 
lease of  Homestead  or  Dower, 505 

148. — Deed  of  Trust  to  secure  a  Debt  (fuller  Form),  and  with 

Release  of  Dower, 507 

149. — Trust   Deed  to  secure  a  Note  (shorter  Form),  but  with 

Warranty,  and  Release  of  Homestead  and  Dower,  .        .     510 

150. — Deed  from  Trustees, 512 

151. — Deed  of  Master  in  Chancery, 513 

152. — Sheriff's   Deed  on   Execution,   in   use  in   the    Western 

States, 514 

153. — Sheriff's  Deed,  in  use  in  New  England,  .  .  .  -515 
154. — Sheriff's  Tax  Deed,  in  use  in  the  Western  States,  .  .517 
155. — Deed  of  Executor,  in  use  in  the  Eastern  States,  .  .518 
156. — Deed  of  Executor,  in  use  in  the  Middle  States,  .  •  519 
158. — Deed  of  Administrator  of  Intestate,  .....  521 
160, — Deed  of  Referee  on  Foreclosure,  in  use  in  the  Middle 

States, 524 

161. — Deed  of  Collector  of  Taxes, 526 

162. — Deed  of  Assignee,  in  use  in  the  Western  States,  .  .  527 
163. — Acknowledgment  of  Grantor   and  Wife  identified  before 

Commissioner  for  another  State,  .....  52Q 
164-168. — Deeds  in  use  in  Canada, 530-536 

Abstract  of  the  Laws  of  all  the  States  Relating  to  Deeds   and  their 

Requirements, 538 


CHAPTER  XXX. 

MORTGAGES  OF  LAND. 

Purpose  of  a  Mortgage, r^-. 

Rights  of  Mortgagor  and  Mortgagee, c^j 

Forvis. 

Form  169. — Promissory  Note,  to  be  secured  by  Mortgage,  .        .        .  546 

170. — Bond,  to  be  secured  by  a  Mortgage,  ....  546 

171. — Mortgage,  without  Power  of  Sale  and  without  Warranty, 

but  with  Release  of  Homestead  and  Dower,     .         .         .  547 


J  5  CONTENTS. 

PACE. 

P^orm  172. — Mortgage,  with  Power  of  Sale,  to  secure  a  Bond,  without 

Release  of  Dower, 548 

173. — Mortgage  to  secure  a  Debt,  with    Power  of   Sale— short 

Form,  ..........     550 

174. — Mortgage  to  secure  a  Debt  (fuller   Form),  with  Power  of 

Sale,  ....  .551 

175. — Deed  Poll  of  Mortgage,  with  Power  to  Sell,  and  Insurance 

Clause,  and  Release  of  Homestead  and  Dower,        .         .     552 
176.— Mortgage  by  Indenture,  with  Power  of  Sale,  and  Interest 

and  Insurance  Clause,  to  secure  a  Bond,  .  .  .  554 
177. — Mortgage  to  Executors,  with  Power  of  Sale,  o  .  .  557 
178. — Mortgage  of  a  Lease,  ....  =  ..  559 
179. — Mortgagee's  Deed,  under  a  Power  of  Sale,  .  .  .  561 
180-199. — Mortgage  Deeds  in  use  in  several  States,  .  ,  562-589 
200. — Assignment  of  Mortgage — short  Form,  ....  590 
201. — Assignment  of  Mortgage,  with  Power  of  Attorney,  .  .  590 
202. — Assignment  of  Mortgage  by  a  Corporation,  .  .  .  591 
203. — Discharge  of  Mortgage — short  Form,  ....  592 
204. — Release  and  Quitclaim  of  Mortgage,  as  used  in  the  West- 
ern States, 593 

205.— Discharge  of  Mortgage,  as  used  in  the  Middle  States,       .     593 
206.— Discharge    and   Satisfaction    of    Mortgage   by   a  Corpo- 
ration,   

207. — Release  of  a  part  of  the  Mortgaged  Premises, 

208. — Deed  Extending  a  Mortgage,     ..... 


594 
594 
596 
209,  210,  211. — Mortgage  Deeds  in  use  in  Canada,      .        .      597-600 


CHAPTER  XXXI. 

LEASES. 

Definition  of  the  Term, •        •        .  604 

Rights  and  Obligations  of  the  Parties, 605 

Fixtures, •..  608 

Digest  of  Leases, 609 

Forms. 

Form  212. — Short  Form  of  a  Lease, 610 

213. — Fuller  Form,  with  a  Provision  for  Abatement  of  Rent,      .  610 
214. — Short  Form  of  Lease,  in  use  in  the  Western  States,  .        .612 

215. — Lease  of  City  Property,  in  use  in  Chicago,         .         .         .  613 

216. — Lease,  with  Provisions  for  Taxes  and  Assessments,          .  615 


CO  NT  EATS.  17 

PAGE. 

Form  217. —  Lease,  with  Covenants  r.bout  Water  Rates,  and  Injury  by 

Fire,  in  use  in  New  Yorlc,           .         .         .         .         .         .  ^'7 

218. — Lease  by  Grant,  in  use  in  the  Western  States,  ,         .         .  619 

219.  —  Lease  by  Certificate,  with  Surety,       .....  620 

220. — Lease  of  City  Property,  in  use  in  St.  Louis,  .  .  .  621 
221. — What  is  called  a  Country  Lease,  in  use  in  t':e  Western 

States, 622 

222. — A  Ground  Lease, 624. 

223. — Assignment  of  Lease,  and  Ground  Rent,  ....  627 
224. — Lease  containing  Chattel  Mortgage  Covenants  to  secure 

Rent, 629 

225. — A  Building  Lease, 632 

226. — A  Mining  Lease, 633 

227. —  Lease    of  Land  supposed  to  contain   Oil,    Salt,  or  other 

Minerals, 634 

228. —Assignment  of  a  Lease 636 

229. — Lindlord's    Notice  to   cjuit  for   Non-Payment   cf  Rent — 

short  Form,         .........  636 

230. — Landlord's    Notice    to   cjuit  for  Non-Payment  of    Rent — 

another  Form,     .         .         .         .         .         .         .         .         '637 

231. — Landlord's  Notice  to  pay  Rent  due.  or  quit,       .         .         -63? 

232. — Landlord's  Notice  to  leave  at  End  of  Term,       .         .         •  63  ' 

233. — Landlord's  Notice  to  determine  a  Tenancy  at  Will,  .         .  63  5 

234. — Receipt  for  Rent,  in  use  in  New  York,  .  .  .  •  63  5 
235-239. — Leases  in  use  in  Canada,           .         .         .       ^  .     638-644 


CHAPTER  XXXII. 

MORTGAGES  OF  GOODS  AND  CHATTELS,  OR  PERSONAL 

PROPERTY. 

The  Pledge  of  Personal  Property, .        .    647 


Forms. 

Form  240. — Mortgage  of  Personal  Property, 6J9 

241. — Mortgage  of  Personal  Property,  with  Warranty,        .         .  6^9 

242. — Mortgage  of  Personal  Property,  with  Power  of  Sale,         .  651 
243. — Mortgage   of    Personal    Property,  with    Power  of  Sale — 

another  Form, 652 

Abstract  of  the  Laws  of  the  States  respecting  Chattel  Mortgages,         .  653 


1 8  "    CONTENTS, 

CHAPTER  XXXIII. 

LAW  OF  PATENTS. 

PACB. 

What  may  be  Patented, 664 

Who  is  Entitled  to  a  Patent, 664 

W^hat  will  Prevent  the  Granting  of  a  Patent, 665 

Mode  of  Proceeding  to  obtain  a  Patent, 665 

Fonns. 

Form  244. — Form  of  Petition, 665 

245. — Specification  to  accompany  a  Petition,        ....  667 

246.— Form  of  Oath, 668 

Drawings, 669 

!Model, 67c 

Completion  of  the  Application, 670 

Examination,  ............  670 

Rejections, 671 

Withdrawals, (^-j-^ 

Appeals, 672 

Form  247. — Appeal  to  the  Examiner-in-chief,         ....  673 

Interferences, 674 

Re-Issues,   '    .        .        • 675 

Form  248.— Petition, (>T] 

249. — Oath  to  be  appended  to  Application  for  Re-issue,         .  677 

Disclaimers, 678 

Form  250. — Disclaimer     . 678 

Extensions, 679 

Designs, 678 

P'orm  251. — Application  for  Patents  of  Designs,      ....  680 

252. —  Specifications  for  Designs, 680 

Form  of  Oath, 681 

Foreign  Patents, 682 

Caveats, 682 

Form  254. — Form  of  a  Caveat, 682 

Repayment  of  Money, "^3 

Assignments  and  Grants, 683 

Form  255. — Assignment  of  the  Entire  Interest  in  Letters-Patent 
before  obtaining  the  same,  and  to  be  recorded  pre- 
paratory thereto, 084 


CONTENTS. 


19 


PAGB 


Form  256. —  Grant  of  a  Partial  Right  in  a  Patent,    ....  685 

Forms  of  License, 686 

The  Ofifice  Fees,  and  how  Payable, 687 

Taking  and  transmitting  Testimony, 688 

Canada,  Patent  Law  of, 688 

Trade-Marks, 689 

CHAPTER  XXXIV. 

LAW  OF  COPYRIGHT. 

Revised  Statutes  of  the  United  States  relating  to  Copyright,  Sections 

4948  to  4971, 696 

Copyright  Law  of  the  Dominion  of  Canada, 700 

Forms. 

Form  260. —  Agreement  between  Author  and  Publisher  —  short  Fonn,  700 

261. —  Agreement  between  Author  and  Publisher  —  fuller  Form,  701 

262. —  Assignment  of  a  Copyright, 702 

CHAPTER  XXXV. 

MEANS  PROVIDED  FOR  THE  RECOVERY  AND  COLLECTION 

OF  DEBTS. 

I. —  Arrest  and  Imprisonment, 703 

2. —  Trustee  Process, 703 

3. —  The  Homestead, 704 

Abstract  of  Laws  relating  to  the  Collection  of  Debts,    ....  705 

CHAPTER  XXXVI. 

LIENS    OF    MECHANICS    AND    MATERIAL-MEN  FOR   THEIR 

WAGES  AND  MATERIALS. 

What  is  a  Lien, 757 

Forms. 

Form  263. —  Notice  under  Mechanic's  Lien  Law, 758 

264. —  Bill  of  Particulars  of  Mechanic's  Claim,    ....  759 

265. —  Release  and  Discharge  of  a  Mechanic's  Lien,  .         .         .  759 
266. —  Release  and  Discharge  of  a  Mechanic's   Lien,  another 

Form, 760 

Abstract  of  the  Laws  of  all  the  States  relating  to  Mechanics'  Liens,     .  761 


20  CONTENTS. 

CHAPTER  XXXVII. 

THE  DISPOSAL  OF  PROPERTY  BY  WILL. 

PAGE. 

Section  I. —  Wills, 776 

II. —  Codicils, 779 

III.— Revocation  of  Wills, 780 

Form  267.—  A  Will, 781 

268. —  Copy  of  a  fuller  form  of  a  Will, 782 

CHAPTER  XXXVIII. 

EXECUTORS  AND  ADMINISTRATORS. 
Powers  and  Duties  of  Executors  and  Administrators,   ....     7ck 

CHAPTER  XXXIX. 

GUARDIANS. 
The  Rights  and  Duties,  Powers  and  Liabilities,  of  Guardians,      .         .     794 

CHAPTER  XL. 
CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS. 


Section  I. —  General  Purpose  and  Principles  of  Construction, 
II. —  Some  of  the  General  Rules  of  Construction, 

III. —  On  Presumptions  of  Law, 

IV. —  Of  the  Effect  of  Custom  and  Usage,  . 
V. —  On  the  Admissibility  of  Extrinsic  Evidence, 

CHAPTER  XLI. 

LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS 

Section  I. —  His  Title  to  his  Farm, 
Subsection  I. —  Possession, 
2. —  Inheritance, 
3. —  Purchase, 
4. —  Sales  of  Land  at  Auction, 


7S»5 

80/ 
802 
80s 


809 
810 

Sio 

811 


CO.VTE.VrS.  2 1 


PACE. 


Section  II. —  What  one  Takes  by  the  Deed  of  his  Farm,       .         .         .812 

Subsection  I. —  Boundaries  and  Descriptions, 812 

2. —  Contents,    . .  813 

3. —  Fixtures,              814 

4. —  Manure, 815 

5. —  Rocks,  Stones,  and  Soil, 815 

6. —  Adjoining  Roads,        ••.....  816 

7. —  Trees, 816 

Section  III. —  Trespassing  on  the  Farm, 817 

Subsection  i. —  Who  is  a  Trespasser,          ......  817 

2. —  Of  the  Right  of  a  Farmer  to  Order  a  Trespasser  off 

from  his  Land,                  818 

Section  IV. —  Farm  Ways, 818 

v.— Water  Rights, 819 

VL— Fire, 819 

VII. —  Game  Animals, 821 

VIII. —  Domestic  Animals, 822 

IX. —  Sale  with  Warranty  of  Animals,  of  Seeds,  and  of  Fer- 
tilizers,   823 

Subsection  i. —  Of  Animals, 823 

2. —  Of  Seeds, 824 

3.  — Of  Fertilizers, 825 

Section  X. —  Hiring  of  Help, 825 

Subsection  i. —  Rights  and  Duties  of  Help, 826 

2. —  Liability  of  the  Farmer  for  the  Wrong-doing  of  his 

Help, 827 

Section  XI. —  Hiring  of  a  Farm, 828 

Subsection  i. —  Hiring  by  Lease, 829 

2. —  Renex\al  of  Lease, 829 

3. —  Remedy  for  non-Payment  of  Rent,     ....  829 
4. —  Tenant's  Right  to  Vacate  the  Premises  and  Give  up 

the  Farm, 830 

5.—  Apportionment  of  Rent, 830 

6. —  Cultivation  of  the  Farm, 831 

Form. —  A  Form  of  a  Lease  of  a  Farm, 832 

7. —  Hiring  on  Shares, 833 


NOTE. 


In  preparing  the  Laws  of  Business,  no  efforts  have  been  spared  to  make 
the  book  a  safe  guide  in  every  business  question  which  is  likely  to  arise  in 
any  State  of  the  Union.  Large  additions  have  been  made  to  the  former 
edition,  especially  of  Abstracts  of  the  Laws  of  all  the  States,  in  relation  to 
such  matters  as  Deeds  of  all  kinds,  Chattel  Mortgages,  Leases,  Wills, 
Mechanics'  Liens,  Days  of  Grace  and  Holidays,  Statutes  of  Limitations, 
Actions,  Recovery  and  Collection  of  Debts,  Attachment,  Arrest,  Garnish- 
ment or  Trustee  Process,  Judgment,  Exemptions,  Stay  Laws,  Homestead 
Rights,  etc.,  etc.,  and  a  new  chapter  on  the  legal  Rights  and  Obligations  of 
Farmers;  Help,  and  their  rights  and  duties;  Trespassers,  Adjoining  Roads, 
Rivers  and  Ponds,  Fences,  Farmways,  Repairs,  Fixtures,  and  many  other 
topics.  The  Forms  have  been  greatly  multiplied.  Some  of  these  Forms 
will  be  found  brief  and  simple;  others  of  them,  especially  those  in  relation 
to  real  estate,  are  full  and  minute.  No  one  but  a  lawyer  knows  how  neces- 
sary it  is  to  use  the  technical,  customary,  and  established  language  of 
Form,  every  phrase  of  which  has  passed  through  repeated  litigation,  and  has 
thus  acquired  a  certain  meaning.  Much  in  such  Forms  will  seem,  to  those 
ignorant  of  law,  to  be  wordy  and  full  of  repetition ;  but,  if  the  Forms  are 
made  apparently  more  simple  by  omissions  and  abbreviations,  they  may  be 
good,  and  they  may  notj  and  whether  they  are  or  not  cannot  be  known  except 
by  litigation.  And  he  must  be  a  bold  lawyer  who  would  undertake  to  prefei' 
Forms  of  his  own  make  to  those  which  the  Courts  and  common  use  have 
sanctioned.  Wherever  possible,  Forms  have  been  given  which  were  thus 
sanctioned,  because  the  very  object  of  this  book  is  to  enable  persons  to  use 
it  to  conduct  their  business  affairs  with  ease,  safety,  and  certainty. 

We  think  such  a  book  possible,  and  venture  to  hope  that  we  have  made 
such  a  book.  We  know  only  that  whatever  labor  and  care  could  do  to  make 
the  book  useful  and  safe,  has  been  done.  In  this  edition  we  have  brought 
the  law  down  to  the  present  time,  have  revised  the  whole  work,  and,  as 
already  said,  have  made  large  additions  which  will,  we  hope,  increase  its 
usefulness  and  value. 


THE  LAWS  OF  BUSINESS. 


CHAPTER   I. 

THE  PURPOSE  AND  USE   OF  THIS  BOOK. 

The  title  of  this  work  indicates,  to  some  extent,  its  purpose 
and  character ;  but,  as  they  are  in  certain  respects  peculiar,  it 
is  thought  that  some  remarks  respecting  them  may  make  the 
volume  more  useful.  Many  years  ago,  after  more  than  twenty- 
five  years  of  practice  at  the  bar,  I  accepted  the  office  of  Dane 
Professor  in  the  Law  School  of  Harvard  University.  I  employed 
whatever  leisure  the  duties  of  that  office  left  me,  in  preparing  a 
series  of  text-books  on  Commercial  Law.  I  have  published 
many  volumes ;  and  the  manner  in  which  they  have  been  re- 
ceived by  my  professional  brethren,  calls  for  my  most  grateful 
acknowledgments.  One  of  those  works  was  entitled  "The  Ele- 
ments of  Mercantile  Law,"  and  was  intended  as  a  general 
epitome  of  Commercial  Law.  I  began  it  mainly  for  the  use  of 
lawyers,  but  at  the  same  time  hoping  that  it  might  be  so 
written  as  to  be  useful  to  others,  who  were  not  lawyers. 
Before  I  had  made  much  progress  in  it,  the  hope  that  one  book 
could  answer  these  two  purposes  faded  away  ;  and  I  finally 
made  that  work  exclusively  for  lawyers.  But  the  circum- 
stance that  many  persons  who  were  not  lawyers,  and  did  not 
intend  to  be,  have  bought  my  works, — the  remarks  that  have 
reached  me  in  relation  to  them,  and  particularly  in  reference  to 
that  above  mentioned,  and  many  other  kindred  facts, — have  given 
additional  strength  to  a  belief  that  led  me  to  prepare  this  vol- 
ume, for  wide  and  general  use. 

That  belief  is,  that  there  is  a  strong  and  growing  disposition, 

(23) 


24 


PURPOSE  AND  USE  OF  THIS  BOOK. 


among  the  men  of  business  of  this  country,  to  understand  the 
laws  of  business.  This  disposition,  and  the  actual  diffusion  of 
this  knowledge,  have  both  greatly  increased  of  late  years,  and  I 
believe  could  not  have  been  arrested ;  for  this  progress  is  one 
element  of  advancing  and  improving  civilization ;  and  I  think  it 
cannot  now  be  prevented. 

The  institutions  and  characteristics  of  this  country  have  their 
bearing  upon  this  question.  We  have  no  sovereign  but  the  law ; 
or  rather  the  people  is  the  sovereign,  and  the  law  is  their  only 
utterance.  It  is  a  sense  of  this  that  has  here  transferred,  in 
some  degree  at  least,  the  loyalty  which  in  the  kingdoms  of  the 
Old  World  attaches  to  a  person,  to  the  law  itself,  using  this 
word  in  its  most  comprehensive  sense.  This  is  a  good  thing; 
1  lot  because  the  law  is  always  wise  and  good,  but  because  it 
'frill  more  probably  become  wise  and  good,  if  the  whole  com- 
iMunity  recognize  it  as  entitled  to  obedience,  and  tJicreforc  enti- 
tled to  their  constant,  earnest,  and  vigorous  endeavors  to  cure 
its  defects,  and  bring  it  into  harmony  with  those  principles  of 
truth  and  justice  of  which  it  should  be  the  expression.  This 
great  duty  rests  upon  us  with  the  stronger  obligation  because  of 
our  greater  intelligence  and  activity  of  mind,  or  more  general 
education  and  wider  extent  of  common  knowledge ;  all  which  are 
none  the  less  facts,  although  they  are  sometimes  used  as  mere 
food  for  vanity,  or  as  topics  for  adulation.  And  all  these  things 
together  seem  to  lead  to  the  conclusion,  that  here  and  now 
proper  efforts  should  be  made  to  supply  all  of  the  community 
who  ask  for  it, — with  accurate  and  practical  information  con- 
cerning those  laws  which  are  of  the  most  immediate  concern  to 
them. 

So  far  as  concerns  the  whole  people,  their  wish,  if  expressed  in 
the  simplest  terms,  would  undoubtedly  be,  to  know  the  laws  which 
must  regulate  their  conduct  and  determine  their  rights.  This 
wish  admits  of  but  one  question ;  it  is,  How  far  is  this  thing 
practicable .''  for  so  far  as  it  is,  its  propriety  and  expediency  can 
hardly  be  denied  or  doubted.  Indeed,  they  who  would  most 
strenuously  oppose  any  effort  to  teach  the  people  the  law,  would 
do  so  only  on  the  ground  that  it  is  impossible  to  give  to  the 
public  any  knowledge  of  this  kind  which  would  be  wide  enough 


PURPOSE  AND  USE  OF  THIS  BOOK. 


25 


and  accurate  enough  for  use.  They  would  think  that  the  very 
endeavor  to  learn  the  law,  by  persons  the  main  business  of 
whose  lives  must  be  of  a  very  different  kind,  would  lead  only  to 
a  superficial  and  erroneous  view  of  the  subject;  and  this,  under 
the  name  of  knowledge,  is  only  the  most  dangerous  ignorance. 

We  should,  however,  remember,  that  the  people  generally, 
here  and  elsewhere,  must  necessarily  know  a  certain  amount  of 
law,  for  without  this  they  cannot  live  safely  in  society.  For 
example,  men  in  business  must  know  something  of  the  most 
general  laws  of  business  ;  as  how  to  conduct  their  sales,  how  to 
make  notes,  how  to  collect  them,  and  the  like  ;  and  all  men 
must  know  so  much  of  ordinary  law  as  protects  and  defines 
their  common  and  universal  rights.  Moreover,  it  will  probably 
oe  admitted  that  important  mistakes,  leading  to  much  loss  and 
difficulty,  are  every  day  made,  because  many  do  not  know  those 
j;eneral  jDrinciples  or  rules  of  law  which  some  do  know,  and 
•'irhich  every  man  in  business  might  know.  The  question,  there- 
fore, can  only  be,  how  much  of  law  it  is  possible  and  desirable  for 
men  in  business  to  learn  ;  and  what  is  their  best  way  of  learn- 
ing it. 

Here  let  me  remark,  that  few  persons,  who  have  not  had 
C/Ccasion  to  study  and  to  teach  Commercial  Law  as  a  whole,  are 
aware  of  that  unity  and  harmony  of  its  principles,  which  make 
it  indeed  a  systevi  of  laws  ;  or  of  the  prevailing  simplicity  and  rea- 
sonableness of  its  rules.  An  eminent  English  lawyer  has  said, 
that  it  was  astonishing  within  how  small  a  space  all  the  princi- 
ples of  commercial  law  may  be  compacted.  It  is  equally  true, 
that  the  laws  of  business  are  generally  free  from  mere  techni- 
cality and  obscurity  ;  and  the  reason  is,  that  they  are  for  the 
most  part,  and  substantially,  nothing  more  than  the  actual  prac- 
tice of  the  business  community,  expressed  in  rules  and  maxims, 
and  invested  with  the  authority  of  law. 

The  knowledge  which  a  trader  acquires  of  the  laws  of  trade 
need  not,  at  all  events,  be  superficial ;  for  a  knowledge  of  princi- 
ples, and  an  intelligent  appreciation  of  them,  however  limited 
it  may  be,  should  not  be  regarded  as  superficial.  And  these 
limits  need  not  be  narrow.  The  extent  of  this  knowledge,  and 
its  accuracy,  thoroughness,  and  utility,  must  obviously  depend 


26  PURPOSE  AND  USE  OF  THIS  BOOK. 

upon  the  books  from  which  it  is  acquired,  and  upon  the  manner 
of  using  those  books. 

Considerations  of  this  kind  led  me  to  the  belief,  that  it  was 
possible  to  make  a  book,  which  should  place  within  the  appre- 
hension of  every  intelligent  trader,  and  of  every  young  man 
who  proposes  to  engage  in  any  department  of  business  (and  this 
now  means  almost  every  man  in  the  community),  at  the  cost  of 
no  more  time  than  every  one  can  conveniently  give  to  it,  a  tisef7il 
knowledge  of  all  the  elements,  or  general  rules  and  principles, 
of  the  Laws  of  Business. 

In  other  words,  I  thought  it  an  undeserved  reproach  of  our 
Laws  of  Business,  to  say  that  they  were  not  intelligible  by  all,  if 
stated  with  simplicity  and  accuracy  ;  and  an  equally  undeserved 
reproach  of  our  Men  of  Business,  to  say  that  they  could  not 
comprehend  laws,  which  were  made  for  them,  and  were  intelli- 
gible in  themselves,  and  plainly  stated.  It  seemed  to  me,  there- 
fore, that  the  time  had  come,  in  this  country,  for  a  book  which  no 
one  has  ever  attempted  to  make  anywhere  heretofore.  This  book 
should  contain  all  the  principles  of  all  the  branches  of  the  laws 
which  regulate  the  common  transactions  of  life,  stated  with  all 
the  accuracy  that  care  and  labor  could  insure  in  any  book,  and 
so  stated  that  any  man  of  good  capacity,  with  reasonable  effort, 
might  understand  all  of  them  ;  and  might,  \vith  the  help  of  the 
Index,  find  in  the  volume  a  true  and  intelligible  answer  to  the 
questions  which  every  day  arise  ;  and  might,  if  he  were  willing 
to  make  a  regular  study  of  the  whole  book  in  course,  becomes 
acquainted  with  the  rules,  and  the  reasons  of  the  rules,  by  which 
all  business  may  be  safely  conducted.  And  this  book  I  have 
endeavored  to  make.  I  have  compiled  it,  mainly  from  the  law- 
books I  have  already  made  for  the  profession.  If  they  are  accu- 
rate and  trustworthy,  this  is  so  ;  and  I  may  be  permitted  to  say, 
that  whatever  earnest  endeavors  could  do  to  make  those  books 
trustv»rorthy  was  done  ;  and  that  accumulated  testimony,  which 
I  have  no  right  to  disregard,  encourages  me  to  hope  that  I  have 
not  labored  in  this  respect  in  vain. 

I  have  made  changes  which  seemed  to  be  required  by  the  in- 
tended adaptation  of  this  book  to  all  men  and  not  to  lawyers 
only.     These  are,  first,  the  omission  of  citations  and  references 


BUSINESS  LAIV  IN  GENERAL. 


27 


to  reports  and  authorities  ;  next,  the  addition  of  some  element- 
ary rules  and  principles  and  definitions,  which  would  not  be  nec- 
essary in  a  book  for  lawyers  only  ;  and  lastly,  the  use  of  com- 
mon or  non-professional  language,  the  general  omission  of 
merely  technical  words,  and  the  full  explanation  of  such  words 
when  they  are  used. 

If  there  are  those  who  are  preparing  for  a  life  of  business, 
or  are  now  engaged  in  it,  who  will  study  this  volume,  in  course, — 
dwelling  on  what  seems  most  important,  and  examining  with 
care  what  seems  obscure, — I  venture  to  hope  that  they  will  find 
the  work  so  arranged,  and  the  meaning  so  expressed,  that  what 
comes  before  explains  what  follows,  and  every  part  of  it  will  be 
intelligible.  At  the  same  time,  I  have  labored  to  make  every- 
thing plain  by  itself,  as  far  as  that  was  possible,  that  it  might 
not  disappoint  those  who,  without  reading  it  in  course,  look  into 
it  for  an  answer  to  questions  as  they  arise.  And  for  such  per- 
sons I  have  endeavored  to  have  the  Index  of  Subjects  (at  the 
end  of  the  book)  exceedingly  full  and  minute. 

I  have  added  a  great  variety  of  Forms.  Of  course  no  col- 
lection of  Forms  could  be  made  large  enough  to  meet  the  exact 
facts  of  every  case  that  can  arise.  But  it  is  possible  to  give 
accurate  Forms  of  all  sorts ;  and  any  person  can  select  the 
Form  nearest  to  his  particular  need,  and  easily  make  the  altera^ 
tions  which  the  facts  of  his  case  require. 


CHAPTER  II. 


BUSINESS  LAW  IN  GENERAL. 

All  law  is  divided  into  what  it  called,  in  law  books,  common 
law  and  statute  law.  We  have  legislatures,  and  our  fathers  had 
them ;  and  a  very  large  proportion  of  the  laws  now  binding 
upon  us  were  made  by  those  legislatures  in  a  formal  and  regular 
way.  All  these  are  Statutes ;  and  taken  altogether,  they  com- 
pose the  Statute  Law.  Besides  this,  however,  there  is  another 
very  large  portion  of  our  law  which  was  not  enacted  by  our 


28  BUSINESS  LA  IV  IN  GENERAL. 

legislatures ;  and  it  is  called  the  Common  Law.  In  fewer 
words,  all  law  was  regularly  enacted,  or  it  was  not.  If  it  was, 
it  is  statute  law ;  if  it  was  not  so  enacted,  it  is  common  law. 

The  common  law  of  the  several  States  of  this  country  con- 
sists, in  the  first  place,  of  all  the  law  of  England — whether 
statute  or  common  there — which  was  in  force  in  that  State  at 
the  time  of  our  independence,  and  recognized  by  our  courts, 
and  which  has  not  since  been  repealed  or  disused.  And  next, 
of  all  those  universal  usages,  and  all  those  inferences  from,  or 
applications  of,  established  law,  which  courts  in  this  country 
have  recognized  as  having  among  us  the  force  of  law.  For  this 
common  law  there  is  no  authority  excepting  the  decisions  of  the 
courts ;  and  we  have  no  certain  means  of  knowing  what  is  or  is 
not  a  part  of  the  common  law,  excepting  by  looking  for  it  in 
those  decisions.  Hence  the  value  and  importance  of  the 
reported  decisions,  which  are  published  by  official  reporters  in 
raost  of  our  States. 

A  very  important  part  of  the  common  law,  especially  to  all 
t/ien  in  business,  is  what  is  called,  by  an  ancient  phrase,  the 
Law-Merchant.  By  this  is  meant  the  law  of  merchants ;  or, 
jiiore  accurately,  the  law  of  mercantile  transactions ;  and  by 
this  again  is  meant  all  that  branch  of  the  law,  and  all  those 
[)rinciples  and  rules,  which  govern  mercantile  transactions  of 
any  kind.  This  great  department  of  the  law  derives  its  force 
in  part  from  statutory  enactments,  but  in  far  greater  part  from 
i.he  well-established  usages  of  merchants,  which  have  been 
adopted,  sanctioned,  and  confirmed  by  the  courts.  For  example, 
a  large  proportion  of  the  law  of  factors  and  brokers,  most  of 
that  of  shipping  and  of  insurance,  and  nearly  all  the  peculiar 
rules  applicable  to  negotiable  paper  (or  promissory  notes  and 
bills  of  exchange  payable  to  order),  belong  distinctly  to  the 
Law-Merchant. 

The  courts  of  this  country  have  always  acknowledged  that 
a  custom  of  merchants,  if  it  were  proved  to  be  so  nearly  uni- 
versal and  so  long  established  that  it  must  be  considered  that 
all  merchants  know  it  and  make  their  bargains  with  reference 
to  it,  constitutes  a  part  of  the  law-merchant.  And  the  law- 
merchant  is  itself  a  part  of  the  common  law,  and  therefore  has 


BUSINESS  LA  W  IN  GENERAL. 


29 


the  whole  obligatory  force  of  law.  This  would  not  be  true,  if 
the  custom  was  one  which  violated  statute  law,  or  the  obvious 
principles  of  public  policy  or  common  honesty.  But  we  may 
suppose  that  no  custom  of  this  kind  would  ever  be  so  generally 
adopted  and  established  as  to  come  before  the  courts  with  any 
claim  for  recognition  as  law. 

A  great  deal  of  the  language  of  every  art  or  science  or  pro- 
fession is  technical  (indeed,  tecJinical  means  belonging  to  some 
art),  and  is  peculiar  to  it,  and  may  not  be  understood  by  those 
who  do  not  pursue  the  business  to  which  it  belongs.  This  is 
as  true  of  law  as  of  everything  else.  In  this  work,  however,  I 
have  avoided  as  far  as  possible  mere  law-words  ;  and  when  I 
have  used  them  have  explained  them  at  the  time.  There  are 
some,  however,  which  cannot  be  dropped  :  they  express  exactly 
what  is  meant,  and  we  cannot  express  it  without  them,  unless 
by  long  and  awkward  sentences.  A  good  instance  of  this  is  in 
those  words  which  end  in  er  (or  ^r)  and  in  ce.  As  for  example, 
promisor  and  promisee,  vendor  and  vendee,  indorser  and  indorsee. 
These  terminations  are  derived  from  the  Norman-French,  which 
was,  for  a  long  time,  the  language  of  the  courts  and  of  the  law 
in  England.  And  it  might  seem  that  we  had  just  as  good 
terminations  in  English,  in  er  and  cd,  which  mean  the  same 
thing.  But  it  is  not  so.  Originally  they  meant  the  same  thing, 
but  they  do  not  now ;  for  both  er  and  ee  are  applied  in  law  to 
persons,  and  ed  to  things  ;  so  that  we  want  all  three  termin;^^ 
tions.  For  example,  indorser  means  the  man  who  indorses  ; 
indors^^  means  the  man  to  whom  the  indorsement  is  made ;  but 
the  note  itself  we  say  is  vn^oxsed.  So  vender  means  the  man 
who  sells,  vend^^  means  the  man  to  whom  something  is  sold, 
and  the  thing  sold  is  vend^^.  And  the  promisor  makes  the 
promise,  the  promis^^  receives  it,  and  the  thing  to  be  done  is 
^xovcix'&ed.  We  have  retained  not  only  this  phraseology,  but 
some  other  words  or  phrases,  of  which  similar  things  might  be 
said. 


30 


OF  INFANTS,  OR  MINORS. 

CHAPTER  III. 
INFANTS,  OR  MINORS. 


SECTION  I. 

Generally,  all  persons  may  bind  themselves  by  contracts. 
But  some  are  incapacitated.  The  incapacity  may  arise  from 
many  causes  ;  as  from  insanity ;  or  from  being  under  guardian- 
ship ;  or  fr(jm  alienage  in  time  of  war ;  or  from  infancy  ;  or 
from  marriage. 

All  persons  are  infants,  in  law,  until  the  age  of  twenty-one. 
But  in  many  of  the  States,  women  are  considered  of  full  age 
at  eighteen,  for  some  purposes. 

The  rule  of  law  is,  that  a  person  becomes  of  age  at  the 
beginning  of  the  day  before  his  twenty-first  birthday.  This 
rule  opposes  the  common  notion,  and  it  rests  on  no  very  good 
reason,  but  on  ancient  authority  and  constant  repetition.  The 
reason  assigned  is,  that  the  law  takes  no  notice  of  parts  of  a 
day.  The  effect  of  the  rule  is,  that  a  person  born  on  the  9th 
of  May  in  the  year  1840,  becomes  of  age  at  the  beginning  of 
the  8th  of  May,  1861,  and  may  sign  a  note,  or  do  any  thing, 
with  the  full  power  of  a  person  of  age,  on  any  hour  of  that  day. 

The  contract  of  an  infant  (if  not  for  necessaries)  is  voidable, 
but  not  void.  That  is,  he  may  disavow  it,  and  so  annul  it, 
either  before  his  majority,  or  within  a  reasonable  time  after  it. 
As  he  may  avoid  it,  so  he  may  ratify  and  confirm  it.  He  may 
do  this  by  word  only.  But  mere  acknowledgment  that  the  debt 
exists  is  not  enough.  It  must  be  substantially,  if  not  in  form, 
a  new  promise.  In  England,  and  a  few  of  our  States,  it  is  pro- 
vided by  statute,  that  this  confirmation  can  only  be  by  a  new 
promise  in  writing,  signed  by  the  promisor.  The  rule  seems  to 
be  useful,  and  we  think  it  will  be  more  widely  adopted. 

It  must  be  a  promise  by  the  party,  after  full  age,  to  pay  the 
debt ;  or  such  a  recognition  of  the  debt  as  may  fairly  be  under- 


OF  INFANTS,  OR  MINORS.  3 1 

stood  by  the  creditor  as  expressive  of  the  intention  to  pay  it ; 
for  this  would  be  a  promise  by  implication.  There  are  no  par- 
ticular words  or  phrases  which  the  law  requires  or  favors  as  a 
confirmation.  No  ratification  or  confirmation  can  be  used  in 
any  action  w^hich  was  brought  before  the  ratification  was  made. 
It  must  also  be  made  voluntarily,  and  with  the  purpose  of 
assuming  a  liability  from  which  he  knows  that  the  law  has  dis- 
charged him.  And  if  it  be  a  conditional  promise,  the  party 
who  would  enforce  it  must  prove  the  condition  to  be  fulfilled. 
Thus,  if  the  plaintiff  relies  on  a  new  promise,  and  asserts  and 
proves  that  the  defendant  said,  after  full  age,  "  I  will  pay  when 
I  am  able,"  he  must  also  prove  that  the  defendant  was  able  to 
pay  when  the  action  was  brought. 

If  an  infant's  contract  is  not  avoided,  it  remains  in  force. 
And  it  may  be  confirmed  without  words ;  and  the  question 
sometimes  occurs,  whether  confirmation  by  mere  silence,  after 
a  person  arrives  at  full  age,  prevents  him  from  avoiding  his  con^ 
tract  made  during  his  infancy.  As  a  general  rule,  mere  silence, 
or  the  absence  of  disaffirmance,  is  not  a  confirmation  ;  because 
it  is  time  to  disaffirm  the  contract  when  its  enforcement  is 
sought. 

But  if  an  infant  buys  property,  any  unequivocal  act  of  owner- 
ship after  majority — as  selling  it,  for  example — is  a  confirmation 
of  the  purchase.  And,  generally,  a  silent  continued  possession 
and  use  of  the  thing  obtained  by  the  contract  is  evidence  of  a 
confirmation  ;  therefore,  if  an  infant  buys  a  horse,  and  gives  his 
note  for  it,  and  after  he  is  of  age  the  seller  puts  the  note  in 
suit,  the  buyer  may  return  the  horse  and  refuse  to  pay  the  note; 
but  if  he  keeps  the  horse,  this  is  considered  evidence  of  a  con- 
firmation of  the  note.  The  evidence  of  confirmation  is  much 
stronger  if  there  be  a  refusal  to  re-deliver  the  thing  when  it  can 
be  re-delivered ;  and  is  generally  conclusive,  when  the  conduct 
of  the  party  must  either  be  construed  as  a  confirmation,  or,  if 
not  so  construed,  must  be  regarded  as  fraudulent,  or  wrongful. 
Thus,  where  an  infant  purchased  a  potash-kettle,  and  gave  his 
promissory  note  for  the  price,  it  being  agreed  by  the  parties  that 
he  might  try  the  kettle,  and  return  it  if  it  did  not  suit  him  ;  and 
the  vendor,  after  the  infant  became  of  age,  requested  him  to 


32  OF  INFANTS,  OR  MINORS. 

return  the  kettle  if  he  did  not  intend  to  keep  it ;  but  he  retained 
and  used  it  a  month  or  two  afterwards.  The  court  held  that 
this  was  a  sufficient  ratification  of  the  contract,  and  that  an 
action  might  be  sustained  on  the  note. 

The  great  exception  to  the  rule  that  an  infant's  contracts  are 
voidable,  is  when  the  promise  or  contract  is  for  necessaries. 
The  rule  itself  is  for  the  benefit  and  protection  of  the  infant, 
and  the  same  reason  causes  the  exception ;  for  it  cannot  be  for 
the  benefit  of  the  infant  that  he  should  be  unable  to  purchase 
food,  raiment,  and  shelter,  on  a  credit,  if  he  has  no  funds.  The 
same  reason,  however,  enlarges  this  exception,  until  it  covers 
not  only  strict  necessaries,  or  those  without  which  the  infant 
might  perish,  or  would  certainly  be  uncomfortable,  but  all 
those  things  which  are  certainly  appropriate  to  his  person,  station, 
and  means. 

There  is  no  exact  dividing  line  which  could  make  this  defini- 
tion precise.  But  it  is  settled  that  mercantile  contracts,  as  oi 
partnership,  purchase  and  sale  of  merchandise,  signing  notes 
and  bills,  are  not  necessaries,  and  that  all  such  contracts  are 
voidable  by  the  infant.  So,  if  he  gives  his  note  even  for  neces- 
saries, he  is  not  bound  by  it ;  but  may  defend  against  it  on  the 
ground  that  it  was  for  more  than  their  true  value;  and  the  jury 
will  be  instructed  to  give  against  him  only  a  verdict  for  so  much 
as  the  necessaries  were  worth. 

If  he  borrows  money,  to  be  expended  in  the  purchase  cf 
necessaries,  and  gives  his  note,  the  debt,  or  the  note,  has  been 
held,  at  law,  voidable  by  the  infant.  But  our  courts  would  no\/ 
hold  an  infant  liable  for  such  a  debt ;  and  it  is  well  settled  that 
an  infant  is  liable  for  money  paid  at  his  request  for  necessaries 
for  him ;  and  if  he  give  a  note  for  necessaries  with  a  surety  who 
pays  it,  the  surety  may  recover  against  the  infant. 

If  an  infant  avoid  a  contract,  he  can  take  no  benefit  from  it; 
thus,  if  he  contracts  to  sell,  and  refuses  to  deliver,  he  cannot 
demand  the  price ;  or  if  he  contracts  to  buy,  and  refuses  the 
price,  he  cannot  demand  the  thing  sold. 

An  infant  is  as  liable  for  torts  (by  torts  or  tortious  acts  the 
law  means  wrongs  or  offences)  as  an  adult ;  and  therefore,  if  he 
fraudulently  represented  himself  as  of  age,  when  he  was  not. 


OF  INFANTS,  OR  MINORS.  33 

and  so  made  a  contract  which  he  afterwards  sought  to  avoid, 
this  fraud  will  not  prevent  his  avoiding  the  contract,  but  for  the 
fraud  itself  he  is  answerable  just  as  an  adult  would  be.  So  if 
he  disaffirms  a  sale,  for  which  he  has  received  the  money,  he 
must  return  the  money ;  because  keeping  it  would  be  a  zvrojig, 
or  a  confirmation  of  the  sale.  So  if  after  his  majority  he 
destroys  or  puts  out  of  his  hands  a  thing  bought  while  an  infant, 
he  cannot  now  demand  his  money  back,  as  he  might  have  done 
on  tendering  the  thing  bought ;  for  by  his  disposal  of  it  he  has 
acted  as  owner,  and  confirmed  the  sale. 

In  general,  if  an  infant  avoids  a  contract  on  which  he  has 
advanced  money,  and  it  appears  that  he  has  received  from  the 
other  party  an  adequate  consideration  for  the  money  so  advanced, 
which  he  cannot,  or  will  not  restore,  he  cannot  recover  back  the 
money  which  he  advanced.  But  if  an  infant  has  engaged  tq 
labor  for  a  certain  period,  and,  after  some  part  of  the  work  is 
performed,  rescinds  the  contract,  he  can  recover  for  the  work 
he  has  done,  as  much  as  that  work  was  worth. 

The  contract  of  an  infant  is  voidable  only  by  him,  or  b}/ 
those  having  a  right  to  act  for  him,  and  not  by  the  other  party. 
The  election  to  avoid  or  confirm  belongs  to  the  infant  alone ; 
and  his  having  this  right  does  not  affect  the  obligation  of  the 
other  party.  Therefore,  one  who  gives  a  note  to  an  infant,  or 
makes  any  other  mercantile  contract  with  him,  must  abide  by  it, 
unless  the  infant  annuls  it,  which  he  can  do  if  he  chooses  to. 

But  if  the  note  were  given  or  the  contract  made  by  a  fraud 
on  the  part  of  the  infant,  the  injured  party  has  the  same  right 
of  defending  against  it  on  this  ground  as  if  the  fraudulent  party 
were  not  an  infant.  And  it  is  a  universal  rule  of  the  law,  that 
no  contract  which  is  tainted  with  fraud  is  valid  against  an  inno- 
cent party  ;  therefore,  a  wilfully  false  representation  of  the  infant 
that  he  has  reached  his  majority  would  be  a  fraud,  and  wouli 
enable  the  party  dealing  with  him  to  set  the  contract  aside. 

A  father  is  bound  to  supply  an  infant  child  with  necessaries  ; 
and,  if  he  does  not,  is  liable  for  their  value  to  any  person  who 
supplies  them.  And  for  these,  as  we  have  seen,  the  child  him- 
self is  also  liable. 

Although  in  most  of  our  States  the  law  does  not  require  that 
'6 


34 


APPRENTICES. 


the  confirmation  or  new  promise  of  an  adult,  of  a  promise  which 
he  may  avoid  because  it  was  made  by  him  when  an  infant,  must 
be  in  writing,  it  would  always  and  everywhere  be  better  and 
safer  to  have  this  new  promise  in  writing.  It  should  be  in  sub- 
stantially this  form  : 

(1.) 
I,  Henry  Thompson,  having  promised  Natlian  Grten^io  {here  describe  the 
promise,  whether  by  a  note,  or  verbally,  for  goods  bought,  or  the  like,  briefly, 
but  so  that  there  may  be  no  vtistake  about  it)  and  at  the  time  of  making  tliat 
promise  I  was  a  minor,  within  the  age  of  twenty-one  years,  now,  in  consider- 
ation of  said  promise,  I  do  hereby  confirm  and  acknowledge  the  same,  and 
promise  a  full  performance  and  execution  thereof.        Henry  Thompson. 

It  would  often  be  easier,  if  both  parties  assented,  simply  to 
give  a  new  note  for  the  amount  due.  But  it  might,  in  many 
cases,  be  better  that  the  new  promise  should  tell  the  stJry  of 
the  old  promise  for  which  it  is  given. 


CHAPTER  IV. 


APPRENTICES. 


The  contract  of  apprenticeship  is  generally  in  writing,  and 
is  also  most  frequently  by  deed,  (or  writing  under  seal,)  and  is  to 
be  construed  and  enforced  as  to  all  the  parties  by  the  common 
principles  of  the  law  of  contracts.  Usually,  the  apprentice, 
who  is  himself  a  minor,  and  his  father  or  guardian  with  him, 
covenant  that  he  shall  serve  his  master  faithfully  during  the 
term.  And  the  master  covenants  that  he  will  teach  the  appren- 
tice his  trade ;  but  the  instrument  is  not  made  invalid  by  the 
omission  to  specify  any  trade  or  profession  as  that  to  be  taught. 
He  also  covenants  to  supply  him  with  all  necessaries,  and  at  the 
end  of  the  term,  give  him  money  or  clothes.  Slight  informali- 
ties would  not  make  the  instrument  void.  Even  if  they  are  ot 
sufBcient  magnitude  to  have  this  effect,  the  instrument  will 
prescribe  and  measure  the  claim  of  each  of  the  parties  against 
i-he  other,  if  they  have  lived  under  this  instrument  as  master 


APPRENTICES.  ,,- 

and  servant.     But  the  apprentice's  consent  will  not  be  inferred 
from  his  mere  signature,  but  must  be  expressed. 

In  case  of  sickness  the  master  is  bound  to  provide  propei 
medicines  and  attendance.  The  master  cannot  transfer  his  trust, 
or  his  rights  over  the  apprentice.  He  has  no  right  to  employ 
the  apprentice  in  menial  services  not  connected  with  the  trade 
or  business  which  he  has  agreed  to  teach  him.  And  when  he 
neglects  to  take  due  charge  of  the  apprentice,  the  parent's  or 
guardian's  authority  will  revive. 

The  sickness  of  the  apprentice,  or  his  inability  to  learn  or 
to  serve,  without  his  fault,  does  not  discharge  the  master  from 
his  covenants,  because  he  takes  this  liability  on  himself.  Nor 
will  such  misconduct  as  would  authorize  a  master  to  discharge 
a  common  servant,  release  the  master  of  an  apprentice  from  his 
liability  on  his  contract.  But  if  the  apprentice  deserts  from  his 
service,  and  contracts  a  new  relation  which  disables  him  from 
returning  lawfully  to  his  master,  the  latter  is  not  bound  to 
receive  him  again  if  he  offers  to  return. 

Not  only  a  party  who  seduces  an  apprentice  from  his  service 
is  liable,  but  where  one  employs  an  apprentice  without  the 
knowledge  and  consent  of  his  master,  the  employer  is  liable  to 
the  master  for  the  services  of  the  apprentice,  although  he  did 
not  know  the  fact  of  the  apprenticeship.  It  may  be  added  that 
if  an  action  be  brought  for  harboring  an  apprentice  against  the 
will  or  without  the  consent  of  his  master,  the  plaintiff  is  bound 
to  prove  that  the  defendant  had  a  knowledge  of  the  apprentice- 
ship. But  a  defendant  who  did  not  know  the  apprenticeship 
when  he  hired  or  received  the  apprentice,  and  who  being 
informed  thereof  continued  to  retain  and  harbor  him,  thereby 
makes  himself  liable. 

(2.) 

A  General  Indenture  of  Apprenticeship,  as  sometimes 

used,  in  New  England. 

This  Indenture,  Made  the  day  of  by  and  between  A.  B. 

of  and  C   D.  his  son,  of  the  age  of  years,  of  the  one  part, 

and  R.  J.  of  of  the  other  part,  witnesseth,  that  the  said  C.  D.,  by 

and  with  the  consent  of  the  said  A   B.  (testified  by  his  signing  and  sealing 
these  presents)  hath  bound  out  himse'f  as  an  apprentice,  to 
of  to  be  taught  in  the  said  trade,  science  or  occupation 


36  APPRENTICES. 

of  a  which  the  said  R.  J.  now  uses,  and  to  live  witli,  continue,  and 

serve  him  as  an  apprentice  from  the  day  of  tlie  date  hereof  (or  from 
the  day  of  next  coming)  unto  the  full  end  and  term  of  seven 

years  from  tlience  next  ensuing  and  fully  to  be  complete  and  ended.  During 
all  which  said  term  of  seven  years,  the  said  A.  B.  doth  covenant  and  promise 
to  and  with  the  said  R.  J.  that  he,  the  said  C.  D.,  shall  and  will  well  and 
faithfully  serve  and  demean  himself,  and  be  just  and  true  to  him  the  said 
R.  J.  as  his  master,  and  keep  his  secrets,  and  everywhere  willingly  obey  all 
his  lawful  commands  ;  that  he  shall  do  no  hurt  or  damage  to  his  said  master 
in  his  goods,  estate,  or  otherwise,  nor  willingly  suffer  any  to  be  done  by 
others,  and  whether  prevented  or  not,  shall  forthwith  give  notice  thereof  to 
his  said  master;  that  he  shall  not  embezzle  or  waste  the  goods  of  his  said 
master,  nor  lend  them  without  his  consent  to  any  person  or  persons  whatso- 
ever ;  that  he  shall  not  traffic,  or  buy  and  sell,  with  his  own  goods,  or  the 
goods  of  others,  during  the  said  term,  without  his  master's  leave  ;  that 
he  shall  not  play  at  cards,  dice,  or  any  other  unlawful  games,  whereby  his 
said  master  may  sustain  any  loss  or  damage,  without  his  consent;  that  he 
shall  not  haunt  or  frequent  play-houses,  taverns  or  ale-houses,  except  it  be 
about  his  master's  business  there  to  be  done  ;  and  that  he  shall  not  at  anj 
time,  by  day  or  night,  depart  or  absent  himself  from  the  service  of  his  said 
master  without  his  leave  ;  but  in  all  things,  as  a  good  and  faithful  apprentice 
shall  and  will  demean  and  behave  himself  to  his  said  master,  and  all  his, 
during  the  said  term.  And  for  and  in  consideration  of  the  sum  of 
to  him  in  hand  paid,  etc.,  the  receipt,  etc.,  the  said  R.  J.  doth  covenant, 
promise,  and  agree  to  teach  and  instruct  his  said  apprentice,  or  otherwise 
cause  him  to  be  well  and  sufficiently  taught  and  instructed,  in  the  said  trade 
of  a  after  the  best  way  and  manner  that  he  can;  and  shall  and  will 

also  find  and  allow  unto  his  said  apprentice  meat,  drink,  washing,  lodging, 
and  apparel,  both  linen  and  woolen,  and  all  other  necessaries  in  sickness  and 
in  health,  meet  and  convenient  for  such  an  apprentice,  during  the  term  afore- 
said ;  and  at  the  expiration  of  the  said  term,  shall  and  will  give  to  his  said 
apprentice  (over  and  above  his  then  clothing)  one  new  suit  of  apparel,  viz., 
coat,  waistcoat,  and  breeches,  hat,  shoes,  and  stockings,  and  linen,  fit  and 
suitable  for  such  an  apprentice. 

In  Witness  Whereof,  The  said  parties  have  interchangeably  set  their 
hands  and  seals  hereunto.     Dated  the  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

{Signatures)     (Seals.) 
(IVt/nesses.) 

(3.) 

Shorter  Indenture  of  Apprenticeship. 

This  Indenture  Witnesseth,  That  by  and  with  the  consent  of 

hath  put  himself,  and  by  these  presents  doth  voluntarily,  and  of  his 

own  free  will  and  accord,  put  himself  Apprentice  to  to  learn  the  art, 

trade,  and  mystery  of  and  after  the  manner  of  an  Apprentice  to 


MARRIED  WOMEN. 


37 


serve  the  s:iid  for  and  during,  and  to  the  full  end  and  term  of 

next  ensuing.  During  all  which  time  the  said  Apprentice  doth  covenant 
and  promise,  th.it  he  will  serve  his  master  faithfully,  keep  his  secrets,  and 
obey  his  lawful  command  ;  that  he  will  do  him  no  damage  himself,  nor  see 
it  done  by  others,  without  giving  him  notice  thereof — that  he  will  not  waste 
his  goods,  nor  lend  them  unlawfully — that  he  will  not  contract  matrimony 
within  the  saiJ  term — that  he  will  not  play  at  cards,  dice,  or  any  other 
unlawful  game,  whereby  his  master  may  be  injured — that  he  will  neither  buy 
nor  sell,  with  his  own  goods  cr  the  goods  of  others,  without  license  from 
his  master — nnd  that  he  will  not  absent  himself  day  nor  night  from  his 
master's  service,  without  his  leave — nor  haunt  ale-houses,  taverns  or  play- 
houses, but  in  all  things  behave  himself  as  a  faithful  Apprentice  ought  to  do 
during  the  said  term.  And  the  said  master  on  his  part  doth  covenant  and 
promise,  that  he  will  use  the  utmost  of  his  endeavors  to  teicli,  cr  cau  e  to 
be  taught  or  instructed,  the  said  Apprentice  in  the  art,  trade,  or  mystery 
of  and   will   procure  and   provide   for   him    sufficient   meat,  drink, 

clothing,  lodging,  and  washing,  fitting  for  an  Apprentice,  during  the  said 
term,  and  will  give  him  quarters  schooling  during  the  said 

term. 

And  for  the  true  performance  of  a'l  and  singular  the  covenants  and 
agreements  aforesaid,  the  said  parties  bind  themselves  eacli  unto  the  other, 
firmly  by  these  presents. 

In  Witness  "Whereof,  The  said  parties  have  interchangeably  set  their 
hands  and  seals  hereunto.     Dated  the  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

Executed  and  delivered  before 
(Witnesses.)  {Signatures)  {Seals.) 


CHAPTER  V. 

MARRIED  WOMEN. 

By  the  original  common  law  of  thi.s  country,  a  married 
woman  is  wholly  incapable  of  entering  into  mercantile  contracts 
on  her  own  account.  By  the  fact  of  marriage,  her  husband 
becomes  possessed  of  all  her  real  estate  during  her  life,  and  if  a 
living  child  be  born  of  the  marriage,  he  has  her  real  estate  during 
his  own  life,  if  he  survive  her.  This  life-right  in  her  real  estate 
is  called,  in  law,  his  tenancy  by  the  citrtesy. 

All  the  personal  property  which  she  has  in  actual  possession 


38 


A/A  RRIED   U  'OMEN. 


bccorac3  by  common  law,  absolutely  his,  as  entirely  as  if  she 
had  made  a  transfer  of  it  to  him.  But  by  property  in  possession 
the  law  means  only  her  goods  and  chattels ;  or  things  which 
can  be  handled;  and  which  actually  are  in  her  hands,  or  under 
her  direct  and  immediate  control.  If  she  have  notes  of  hand, 
money  due  her,  or  shares  in  various  stocks,  these  are  not  con- 
sidered as  things  in  possession,  but  as  things  in  action. 

Tilings  ill  possession  are  those  things  which  one  has  now  m 
his  hands,  and  tJiiiigs  in  action  (called  in  law  cJioscs  in  action), 
those  which  are  so  called  because  he  who  owns  them  cannot  get 
possession  of  them  without  an  action,  if  other  persons  choose  to 
resist  him.  All  debts,  and  evidences  pf  debt,  as  bonds,  notes, 
and  all  shares  in  stocks,  whether  national  or  State,  or  of  incor- 
porated companies  or  other  companies,  are  things  in  action. 
But  bank-bills  are  usually  regarded  as  money,  and  therefore  as 
things  in  possession.  The  common  law  makes  a  wide  difference 
between  things  in  possession  and  things  in  action  in  many 
respects. 

The  common  law  of  husband  and  wife  as  to  things  in  action 
is  this.  The  husband  may,  if  he  pleases,  reduce  them  to  his 
possession,  and  so  make  them  absolutely  his  own.  In  general, 
he  does  this  by  any  act  wh:ch  is  distinctly  an  act  of  ownership; 
as  if  he  demands  and  collects  the  debts  due  to  her,  or  indorses 
her  notes — which  he  can  do  in  his  own  name — and  sells  them, 
or  has  the  stock  transferred  to  his  own  name,  or,  in  general 
makes  any  final  and  effectual  disposition  of  these  things  in 
action.     Then  they  have  become  absolutely  his  own. 

If,  however,  he  does  not  reduce  them  to  possession,  and  dies, 
and  she  survives  him,  her  whole  right  and  property  revive  at 
his  death,  without  any  interest  whatever  in  his  representatives. 
And  even  if  he  disposes  of  them  by  will,  this  is  ineffectual, 
unless  he  had  reduced  them  into  his  possession  while  he  lived. 

If,  however,  he  survives  her,  he  will  be  made,  if  he  wishes 
it,  her  administrator,  and  then  can  collect  all  her  things  in  action, 
and  hold  them  or  their  proceeds  as  his  own.  And  if  she  dies, 
and  then  he  dies  before  he  has  collected  these  tilings  in  action, 
administration  on  his  wife's  effects  will  be  granted  to  his  next 
of  kin,  and  not  to  hers ;  and  when  collected,  they  will  belong  to 
his  estate. 


MARRIED   WOMEN. 


39 


On  the  other  hand,  the  husband  is  liable,  by  the  common 
law,  with  her,  for  all  the  debts  for  which  his  wife  was  liable 
when  he  married  her.  This  is  true  whether  they  were  then 
payable,  or  did  not  mature  until  after  the  marriage;  and 
whether  he  received  anything  with  her  or  not.  If  he  does  not 
pay  them,  and  dies  before  the  creditor  has  obtained  a  judgment 
against  him,  his  estate  is  not  liable,  even  if  he  had  a  fortune 
with  her,  and  that  fortune  goes  to  his  heirs  or  his  creditors,  and 
her  creditors  get  nothing.  So  it  is  if  the  wife  dies  before  the 
creditor  recovers  a  judgment  against  the  husband,  and  the 
husband  then  retains  all  her  fortune.  But  her  responsibility 
revives  at  his  death,  and  she  is  liable  as  before  marriage,  even 
if  she  carried  him  a  fortune,  and  all  her  fortune  went,  as 
above  stated,  to  his  representatives.  But  if  she  dies,  leaving 
things  in  action  not  reduced  by  the  husband  to  possession,  and 
he  reduces  them  to  his  possession  as  her  administrator,  he  must 
apply  them  to  the  payment  of  her  debts,  and  can  hold  foi 
himself  only  what  is  left  after  such  payment. 

Such,  we  have  said,  is  the  common  law  of  England  and  of 
this  country.  We  have  stated  it,  because  it  is  the  origin  and 
common  foundation  of  the  law  everywhere.  But  it  is  not  just 
or  right ;  and  there  are  few,  perhaps  no  one  of  our  States,  in 
which  it  remains  wholly  unqualified  by  statutory  provisions. 
But  these  provisions  are  very  various ;  and  in  some  of  the  States 
they  change  with  almost  every  year. 

By  the  common  law  a  widow  is  entitled  to  dower,  that  is,  to 
the  use  and  occupation  during  her  life  of  one-third  of  the  lands 
owned  b}'-  the  husband  at  any  time  during  the  existence  of  the 
marriage  relation  between  them. 

In  nearly  all  the  States  a  married  woman  conveys  her  own 
real  estate,  and  releases  dower  by  joining  in  a  deed  with  her 
husband;  but  she  is  not  generally  bound  by  covenants  therein, 
and,  in  many,  must  be  separately  examined.  In  most,  she  has 
a  certain  time,  after  removal  of  the  disability  of  coverture,  to 
assert  her  different  rights,  otherwise  barred.  Generally,  devises 
or  conveyances  to  husband  and  wife  create  a  joint-tenancy, 
unless  the  terms  of  the  devise  or  conveyance  are  expressly 
otherwise.     And,  upon  the  marriage  of  a  woman  who  is  plaintiff 


40 


MARRIED    U'O.UEN. 


or  defendant,  the  suit  does  not  abate,  but  the  husband  may  be 
admitted  to  prosecute  or  defend  with  her. 

I  give  here  an  Abstract  of  the  law  of  husband  and  wife,  as 
it  stands  on  the  Statutes  of  the  several  States  and  Territories. 

For  statute  provisions  respecting  homesteads,  see  the  Ab- 
stract of  Laws  relating  to  the  Collection  of  Debts. 

ALABAMA. 
All  property  of  wife  acquired  before  or  after  marriage  is  her  separate  property 
and  not  liable  for  debts  of  husband.  Her  earnings  and  any  damages  recovered  for 
injury  to  person  or  property  are  her  separate  estate.  She  remains  solely  liable  for 
torts  committed  before  marriage.  Husband  is  not  liable  for  wife's  contracts  after 
marriage,  or  for  her  torts,  unless  he  participates.  She  has  full  capacity  to  contract 
as  if  sole,  with  his  written  consent.  She  must  sue  and  be  sued  alone  on  all  her  con- 
tracts and  torts.  Husband  must  join  in  sale  of  her  lands,  unless  he  has  abandoned 
her,  is  insane,  a  non-resident,  or  imprisoned  under  two  years'  sentence.  Husband 
and  wife  may  contract  directly  with  each  other,  subject  to  rules  of  law  as  to  persons 
in  confidential  relations.  She  may  carry  on  business  in  her  own  name  on  filing  in 
probate  court  written  consent  of  husband.  Women  are  of  age  at  twenty-one,  but 
may  marry  without  parents'  consent  at  eighteen. 

ARIZONA. 
All  property  of  the  wife  owned  by  her  before  marriage,  or  afterwards  acquired 
by  gift,  devise,  bequest,  or  descent,  is  her  separate  property,  and  is  not  liable  for 
debts  of  the  husband.  All  property  acquired  by  either  husband  or  wife  after  mar- 
riage, except  by  gift,  devise,  bequest,  or  descent,  is  the  common  property  of  both, 
md  during  coverture  can  be  disposed  of  by  him  only.  She  may  sue  and  be  sued,  in 
reference  to  her  separate  property,  as  though  unmarried,  and  may  carry  on  business 
in  her  own  name  by  complying  with  certain  statutory  provisions.  If  of  the  age  of 
twenty-one  years  or  over,  she  shall  have  the  sole  and  exclusive  control  of  her  sepa- 
rate property,  and  may  sell  and  convey  her  lands  without  being  joined  by  the  hus- 
band.    Dower  and  curtesy  are  abolished. 

ARKANSAS. 
In  Arkansas,  a  feme  covei-t  may  be  seized  in  her  own  right  of  any  property  not 
coming  from  her  husband.  A  married  woman  cannot  be  executrix.  Her  real  and 
personal  property  are  her  sole  property,  and  are  not  liable  for  her  husband's  debts, 
but  may  be  controlled  by  her,  and  she  may  sue  or  be  sued  on  account  thereof,  as  if 
unmarried.  The  filing  of  a  schedule  of  such  separate  property  in  the  office  of  the 
recorder  of  the  county  where  she  lives  is  prima  facie  evidence  of  her  title.  May 
make  a  will;  may  insure  her  husband's  life  for  her  own  benefit;  may  manage  and 
carry  on  business  with  her  separate  estate;  and  her  contracts  in  respect  thereto  are 
not  binding  on  her  husband. 

CALIFORNIA. 

A  married  woman  may  hold,  convey,  and  devise  real  and  personal  estate,  but 

her  conveyance  is  inoperative  unless  acknowledged.     Either  husband  or  wife  may 

enter  into  any  engagement  or  transaction  with  each  other  or  with  any  other  person 

respecting   property,  which   either   might,    if   unmarried,  subject   in    transactions 


MARRIED    WOMEN. 


41 


between  themselves  to  the  general  rules  which  control  the  actions  of  persons  occupy- 
ing confidential  relations  to  each  other.  They  cannot  by  contract  with  each  other 
alter  their  legal  relations  except  as  to  property  and  except  that  they  may  agree  to 
an  immediate  separation  and  make  provision  for  their  support  and  that  of  children 
during  separation.  All  property  owned  before  marriage,  or  subsequently  acquired 
by  gift,  bequest,  devise,  or  descent,  by  either  husband  or  wife,  with  the  rents,  issues, 
and  profits  thereof,  is  his  or  her  separate  property.  All  other  property  acquired 
after  marriage  by  either  husband  or  wife,  or  both,  is  community  property.  The 
wife  may,  without  the  consent  of  her  husband,  convey  her  separate  property  or  dis- 
pose of  the  same  by  will.  Neither  the  separate  property  nor  the  earnings  of  the 
wife  are  liable  for  the  debts  of  the  husband,  but  her  separate  property  is  liable  for 
her  own  debts  contracted  before  or  after  marriage.  The  separate  property  of  the 
husband  is  not  liable  for  the  debts  of  the  wife  contracted  before  marriage.  The 
earnings  and  accumulations  of  the  wife  and  of  her  minor  children  living  with  her  or 
in  her  custody,  while  she  is  living  separate  from  her  husband,  are  her  separate  prop- 
erty. The  husband  has  the  management  and  control  of  the  community  property, 
except  the  homestead,  with  the  like  absolute  power  of  disposition  (other  than  testa- 
mentary) as  he  has  of  his  separate  estate.  Husband  cannot  convey  community  prop- 
erty without  consid-eration  unless  wife  joins  in  conveyance.  Husband  can  convey 
property  directly  to  the  wife.  The  community  property  is  not  liable  for  the  con- 
tracts of  the  wife  made  after  marriage  unless  secured  by  pledge  or  mortgage  thereof 
executed  by  the  husband.  Dower  and  curtesy  are  abolished.  On  the  death  of  the 
wife  the  entire  community  property,  without  administration,  belongs  to  the  surviv- 
ing husband,  except  such  portion  as  may  have  been  set  apart  to  her  by  judicial  de- 
cree for  her  support.  On  the  death  of  the  husband  one-half  of  the  community 
property  goes  to  the  surviving  wife,  and  the  other  half  is  subject  to  the  testamentary 
disposition  of  the  husband,  and  in  the  absence  of  such  disposition  goes  to  his  de- 
scendants, or  if  there  be  no  descendants  is  divided  in  the  same  manner  as  the  sepa- 
rate property  of  the  husband,  the  whole  community  property  being  subject  to  his 
debts,  the  family  allowance,  and  charges  and  expenses  of  administration.  Contracts 
for  marriage  settlements  must  be  in  writing,  executed  and  acknowledged  in  like  man- 
ner as  deeds  of  land,  and  recorded  in  ever)'  county  in  which  there  is  land  affected 
thereby.  In  case  of  divorce  on  the  ground  of  adulter)'  or  extreme  cruelty  the  com- 
munity property  (except  the  homestead)  is  divided  in  such  manner  as  the  court  may 
deem  just.  In  other  cases  it  is  equally  divided.  A  married  woman  may,  upon  ob- 
taining leave  of  court,  transact  business  as  a  feme  sole.  Women  arrive  at  majority 
at  the  age  of  eighteen  years. 

COLORADO. 

All  property  coming  tD  the  wife  before  or  after  marriage,  except  from  her  hus- 
band, remains  her  sole  and  separate  property.  She  may  bargain  and  sell,  and  enter 
into  any  contract  in  regard  to  the  same  as  if  she  were  sole.  She  may  sue  or  be  sued 
in  regard  to  her  property,  person,  or  reputation,  the  same  as  if  sole;  may  make  a 
will,  but  she  cannot  bequeath  away  from  her  husband  more  than  one-half  her  prop- 
erty without  his  consent  in  writing.  She  may  carry  on  business  on  her  own  account, 
and  her  earnings  are  her  separate  property.  The  husband  is  liable  for  the  debts  of 
his  wife  contracted  before  marriage  to  the  extent  of  the  property  he  ma)'  receive 
through  her,  but  no  further;  and  the  wife  may  contract  debts,  sign  bonds,  bills,  and 
notes,  and  sue  and  be  sued  in  regard  to  the  same  as  if  she  were  sole.  Dower  is 
abolished. 


42 


MARRIED    WOMEN. 


CONNECTICUT. 

Husband  married  before  April  20,  1877,  has  a  right  to  use  of  wife's  real  estate 
during  her  life  and  an  estate  by  the  curtesy  after  her  death.  All  real  estate  con- 
veyed to  a  married  woman,  in  consideration  of  property  acquired  by  her  personal 
services  during  coverture,  shall  be  held  by  her  to  her  sole  and  separate  use;  and  the 
avails  of  all  sales  of  the  real  estate  of  a  married  woman,  if  invested  in  her  name,  or 
in  the  name  of  a  trustee  for  her,  belong  to  her.  When  any  man  abandons  his  wife 
for  a  continuous  period  of  three  years  she  may,  on  petition  to  the  Superior  Court,  be 
authorized  to  dispose  of  her  real  estate,  as  if  she  were  a.  feme  sole.  All  the  personal' 
property  of  any  woman  married  since  the  22d  of  June,  1849,  '^"^  before  April  20, 
1877,  and  all  the  personal  property  acquired  thereafter  by  a  married  woman,  and  the 
avails  of  any  such  property  if  sold,  shall  vest  in  the  husband  in  trust,  to  receive  and 
enjoy  the  income  thereof  during  his  life,  subject  to  the  duty  of  expending  therefrom 
so  mucli  as  may  be  necessary  for  the  support  of  his  wife  during  her  life,  and  of  her 
children  during  their  minority,  and  to  apply  such  part  of  the  principal  thereof  as 
may  be  necessary  for  the  support  of  the  wife,  or  otherwise,  with  her  written  assent; 
and  upon  his  decease  the  remainder  of  such  trust  property  shall  be  transferred  to  the 
wife,  if  living,  otherwise  as  she  may  by  will  have  directed,  or  in  default  of  such  will 
to  those  entitled  by  law  to  succeed  to  her  intestate  estate.  A  marriage  contracted 
after  April  20,  1S77,  gives  neither  husband  nor  wife  any  interest  in  the  property  of 
the  other,  except  as  survivor.  Her  earnings  are  her  own  property.  She  may  con- 
tract with  third  persons  or  convey  property  to  them  as  if  unmarried.  The  property 
of  either  is  not  liable  for  the  debts  of  the  other  incurred  before  or  after  marriage. 
The  purchases  of  either  are  presumed  to  be  on  his  or  her  own  account,  unless  they 
have  gone  to  the  support  of  the  family,  or  for  her  reasonable  apparel,  or  for  her 
support  when  abandoned  by  her  husband,  in  which  cases  he  is  liable.  He  is  bound 
to  support  the  family.  On  the  death  of  either,  the  survivor  has  the  use  for  life  of 
one-third  of  the  property,  real  and  personal,  of  the  other,  which  right  is  not  to  be 
defeated  by  any  will  of  the  other.  If  there  be  no  will  the  survivor  takes  the  third 
absolutely,  and  if  no  issue  one-half.  If  either  leaves  a  '.'.jgacy  to  the  other  that  leg- 
acy is  to  be  taken  instead  of  this  right;  but  the  legatee  may  elect  whether  to  accept 
the  legacy  or  his  or  her  statutory  share.  They  may  contract  before  or  after  mar- 
riage for  a  provision  in  lieu  of  this  statutory  share.  Neither  party  abandoning  the 
other  is  entitled  to  this  share.  Parties  married  before  April  20,  1877,  may  by  writ- 
ten contract  duly  recorded  substitute  for  their  rights  as  existing  at  that  date  those 
given  to  parties  thereafter  married  as  above  provided.  A  married  woman  whose 
husband  is  under  a  conservator  has  all  the  rights  as  to  her  property  and  estate  as 
though  unmarried. 


MARRIED    WOMEN.  43 

DELAWARE. 

The  real  and  personal  property  of  any  married  woman,  whethei  acquired  before 
or  after  marriage  from  any  person  but  her  husband,  is  her  sole  and  separate  prop- 
erty, not  subject  to  the  disposal  of  her  husband  or  liable  for  his  debts.  She  may 
receive  and  control  her  separate  earnings,  and  may  sue  and  be  sued  in  regard  to 
her  separate  property.  She  may  also  make  any  contracts  necessary  to  be  made 
with  respect  to  her  property.  In  purchasing  real  estate  she  may  give  any  bond, 
mortgage,  or  security,  as  if  sole,  and  her  husband  need  not  join.  She  maybe  execu- 
trix or  administratrix.  She  may  make  a  power  of  attorney.  If  twenty-one  years  of 
age  she  may  dispose  of  her  property,  real  and  personal,  by  will.  A  widow  is  enti- 
tled to  dower,  as  at  common  law,  but  if  the  husband  die  without  leaving  issue  she  is 
entitled  to  one-half,  instead  of  one-third,  of  the  real  estate.  ■  Females  attain  their 
majority  at  21  years.     Guardianship  continues  until  the  female  is  21  or  is  married. 


DISTRICT  OF  COLUMBIA. 

Property,  real  or  personal,  belonging  to*  a  married  woman  at  the  time  of  her  mar- 
riage, or  afterwards  acquired  otherwise  than  by  gift  or  conveyance  from  the  hus- 
band, is  not  subject  to  disposal  by  the  husband,  or  liable  for  his  debts,  and  may  be 
conveyed,  devised,  or  bequeathed  by  her,  as  though  she  were  unmarried.  A  mar- 
ried woman  may  contract,  sue,  and  be  sued  in  her  own  name  in  all  matters  relating 
to  her  sole  and  separate  property.  The  earnings  of  a  married  woman  are  still  tht 
property  of  the  husband. 

FLORIDA. 

All  property,  real  and  personal,  of  the  wife  owned  by  her  before  marriage,  or 
acquired  afterwards  by  gift,  devise,  bequest,  descent,  or  purchase,  shall  be  her  sepa- 
rate property,  and  not  liable  for  the  debts  of  the  husband  without  her  consent  in 
writing  executed  according  to  the  law  governing  conveyances  by  married  women. 
Property  of  married  woman  may  be  conveyed  and  charged  in  equity,  but  alwaj"s 
with  her  consent.  But  to  protect  such  property  from  the  claims  of  the  husband's 
creditors  it  should  be  inventoried  and  recorded  in  the  clerk's  office  of  the  county 
where  the  property  is  situated  within  six  months  after  the  marriage,  or  after  the  date 
when  the  property  was  acquired.  Husband  and  wife  must  join  in  any  conveyance  of 
her  property,  and  in  case  of  conveyance  of  real  estate  she  must  make  a  separate 
acknowledgment  apart  from  her  husband.  A  married  woman  cannot  make  a  contract 
to  bind  her  separate  property  unless  her  husband  joins  with  her;  but  on  petition  in 
chancery  she  may,  by  license  of  court,  become  a  free  dealer,  and  manage  and  control 
her  own  estate,  and  contract  and  sue  in  reference  to  the  same,  as  though  unmarried. 
Dower  as  at  common  law;  but  the  widow  may  elect,  instead  of  dower,  to  take  a 
child's  share  in  the  estate  of  her  husband,  subject  to  the  payment  of  his  debts.  A 
married  woman  may  dispose  of  her  property,  real  and  personal,  by  will,  as  though 
unmarried.  Suits  by  married  women  must  be  begun  as  at  common  law;  husband 
must  join  or  she  must  sue  by  her  next  friend. 


44 


MARRIED    WOMEN. 


GEORGIA. 


In  Georgia,  marriage  settlements,  if  not  recorded  within  three  months  after  exe- 
cution, are  invalid  as  to  bona  fide  purchasers,  creditors,  or  sureties  without  actual 
notice,  becoming  so  before  actual  recording.  The  husband  takes  administration, 
and  is  sole  heir  of  his  deceased  intestate  wife,  unless  she  leaves  children  and  a  sep- 
arate estate,  in  which  case  such  estate  is  divided  between  the  husband  and  the  chil- 
dren. On  the  death  of  the  husband  without  issue,  the  wife  is  the  sole  heir.  If 
deserted,  her  earnings  vest  in  herself.  A  husband  married  after  1856  is  not  liable 
for  his  wife's  debts,  further  than  the  property  received  through  her  will  satisfy ;  and 
such  property  is  not  liable  for  his  debts  existing  at  the  time  of  the  marriage.  A 
married  woman  may  deposit  in  any  savings  institution  any  sum  not  more  than  ^2,000, 
the  earnings  of  herself  or  children,  as  her  own  separate  property,  as  if.  she  were 
unmarried.  The  property  of  the  wife  coming  to  her  before  or  after  marriage 
remains  her  separate  property,  and  is  not  liable  for  the  debts  of  the  husband.  All 
acquisitions  of  the  wife  when  living  separate  from  her  husband  are  her  own.  She 
may  be  a  free-trader,  with  the  consent  of  her  husband,  may  sue  and  be  sued  alone 
in  regard  to  her  separate  estate,  and  may  make  a  will  with  the  consent  of  her  hus- 
band. Dower  is  allowed  only  in  land  which  the  husband  owned  at  the  time  of  his 
death,  or  to  which  he  obtained  title  in  right  of  his  wife. 

IDAHO. 

All  property,  real  and  personal,  owned  by  the  husband  or  wife  respectively 
before  the  marriage,  and  that  subsequently  acquired  by  gift,  bequest,  devise,  or 
descent  is  separate  property.  The  wife  must  sign,  acknowledge,  and  have  recorded 
1  complete  inventory  of  her  separate  property  in  the  county  where  it  is  situated. 
The  husband  has  the  management  and  control  of  the  wife's  separate  property  dur- 
ing the  continuance  of  the  marriage,  but  can  make  no  sale  or  alienation  thereof,  or 
encumbrance  thereon,  except  by  an  instrument  in  writing,  signed  by  both  husband 
and  wife,  and  acknowledged  by  her,  separate  and  apart  from  him.  All  the  prop- 
erty acquired  by  either  party  after  marriage,  except  such  as  is  acquired  by  gift, 
bequest,  devise,  or  descent,  is  common  property.  The  husband  has  the  entire  man- 
agement and  control  of  the  common  property,  with  the  same  power  of  disposition 
as  of  his  own  separate  estate.  The  rents  and  profits  of  all  separate  property  of 
both  husband  and  wife  are  deemed  common  property,  unless  it  is  otherwise  pro- 
vided in  the  instrument  of  devise.  On  the  dissolution  of  the  community  by  the 
death  of  the  husband,  half  of  the  common  property  goes  to  the  survivor,  and  half 
to  descendants,  if  any ;  if  not,  all  to  the  survivor.  On  the  death  of  the  wife,  the 
entire  common  property  goes  to  the  husband.  On  dissolution  by  decree  of  court, 
the  common  property  is  equally  divided,  unless,  in  case  of  adultery  or  extreme 
cruelty,  the  court  otherwise  orders.  The  note  of  a  married  woman  binds  her  sepa- 
rate estate.  She  may  dispose  of  all  her  separate  property,  real  and  personal,  by 
will. 

ILLINOIS. 

In  Illinois,  a  married  woman  may  own,  in  her  own  right,  real  and  personal 
property  obtained  by  descent,  gift,  or  purchase,  and  manage,  sell,  and  convey  the 
same  to  the  same  extent  and  in  the  same  manner  that  the  husband  can  property 
belonging  to  him.     Neither  husband  nor  wife  shall  be  liable  for  the  debts  of  the 


MARRIED    WOMEN. 


45 


other  contracted  before  marriage,  nor  for  the  separate  debts  of  each  other.  Con^ 
tracts  may  be  made  and  liabilities  incurred  by  a  wife,  and  the  same  enforced  against 
her,  to  the  same  extent  and  in  the  same  manner  as  if  she  were  unmarried ;  but  she 
cannot  enter  into  or  carry  on  a  partnership  without  the  consent  of  her  husband, 
unless  he  have  abandoned  her,  or  is  idiotic  or  insane,  or  in  the  penitentiary.  She 
may  sue  and  be  sued  alone,  as  if  she  were  unmarried.  Neither  he  or  she  can 
recover  any  compensation  for  any  labor  performed  or  services  rendered  for  the 
other.  Provisions  are  made  for  the  protection  and  support  of  the  wife  in  case  of 
her  abandonment  by  the  husband.  By  another  act,  tenancy  by  the  curtesy  is  abol- 
ished, and  husband  and  wife  are  put  on  the  same  footing  as  to  dower.  Married 
woman  may  sue  alone  in  regard  to  her  separate  property,  and  when  the  suit  is 
between  husband  and  wife ;  may  be  executrix  if  her  husband  file  his  consent.  She 
may  make  a  will. 

INDIANA. 

In  Indiana,  a  married  woman  holds  her  real  and  personal  property  and  all  the 
income  therefrom  absolutely  as  her  separate  property,  free  from  liability  for  the 
debts  of  the  husband,  but  she  cannot  sell  or  encumber  her  real  estate  unless  the 
husband  join  in  the  conveyance.  She  may  dispose  of  her  separate  personal  prop- 
erty as  if  unmarried ;  may  carry  on  any  trade  or  business,  and  her  earnings  and 
profits  therein  are  her  separate  property ;  and  may  enter  into  any  contract  in  refer> 
ence  to  her  separate  personal  estate  or  business,  or  the  management  and  improve 
ment  of  her  separate  real  estate,  and  may  sue  or  be  sued  thereon.  The  husband  is 
not  liable  for  debts  contracted  in  her  separate  business.  Curtesy  and  dower  art 
abolished.  The  widow  takes  one-third  of  her  deceased  husband's  real  estate  in  fee, 
free  from  the  demands  of  creditors,  where  it  does  not  exceed  ten  thousand  dollars 
in  value.  Where  it  does  not  exceed  twenty  thousand,  she  takes,  as  against  credi- 
tors, one-fourth  only,  and  when  it  exceeds  twenty  thousand,  one-fifth.  She  takes 
one-third  of  the  personalty  after  the  payment  of  debts.  When  the  husband  dies 
intestate,  leaving  a  widow  and  one  child,  each  takes  one-half  of  the  real  estate  and 
one-half  of  the  personal  property  on  distribution.  There  are  special  provisions  in 
reference  to  second  marriages.  A  married  woman  may  make  a  will,  as  if  single. 
A  woman  is  eligible  to  any  oftice  the  election  to  which  is  vested  in  the  general 
assembly,  or  appointment  in  the  Governor,  to  act  as  short-hand  reporter  in  the 
county  courts,  and  to  any  office  under  the  school  laws. 

IOWA. 

In  lowA,  a  married  woman  owns  in  her  own  right  all  property,  real  or  personal, 
which  came  to  her  by  descent,  gift,  or  purchase,  and  may  manage,  dispose  of,  and 
devise  the  same  by  will  without  the  interference  of  her  husband.  Neither  the  husband 
nor  wife  is  liable  for  the  debts  or  contracts  of  the  other,  made  or  incurred  before  mar- 
riage or  after.  For  all  civil  injuries  by  the  wife,  damages  may  be  recovered  from 
her  alone.  In  case  of  abandonment  of  either  by  the  other,  the  party  abandoned 
may  petition  the  court,  who  may,  on  sufficient  proof  of  the  facts,  authorize  the  peti- 
tioner to  manage  or  encumber  the  property  of  the  abandoning  party  for  the  support 
of  the  family.  Each  may  constitute  the  other  his  or  her  attorney  in  fact.  She  may 
sue  for  and  recover  wages  for  her  personal  services,  and  hold  what  she  recovers  as 
her  own  property.     She  may  make  contracts  and  incur  liabilities  in  the  same  man- 


46 


MARRIED    WOMEN. 


ner  as  jf  uirriarried.  The  husband  is  not  liable  upon  contracts  relative  to  his  wife's 
separate  property  or  purporting  to  bind  herself  alone,  nor  is  the  property  or  income 
of  either  liable  for  the  debts  of  the  other.  Family  expenses,  education  of  children, 
etc.,  are  chargeable  upon  the  property  of  both  or  either,  and  on  such  claims  they 
may  be  sued  jointly  or  separately.  If  both  are  sued  jointly  the  wife  may  defend 
for  her  own  right  or  for  her  husband's  also.  Neither  husband  nor  wife  can  remove 
the  other  or  their  children  from  the  homestead  without  his  or  her  consent.  A  mar- 
ried woman  may  receive  gifts  or  grants  directly  from  her  husband.  Dower  and 
curtesy  are  abolished.  The  survivor,  whether  husband  or  wife,  has  one-third  in 
ralue  of  all  real  estate  owned  by  the  other  at  any  time  during  the  marriage  unless 
che  righ*  has  been  relinquished  by  a  joint  deed  or  the  property  sold  on  execution. 

KANSAS. 

In  Kansas,  the  property,  real  or  personal,  of  a  married  woman,  owned  at  the 
time  of  her  marriage,  or  subsequently  received,  is  her  sole  and  separate  property, 
not  subject  to  the  disposal  of  her  husband,  nor  liable  for  his  debts.  She  may  sell 
and  convey,  or  enter  into  any  contract  relating  thereunto,  and  may  sue  and  be  sued, 
as  if  sole.  She  cannot  bequeath  more  than  half  of  her  property  away  from  her  hus- 
band without  his  written  consent.  If  either  die  intestate  and  without  issue,  all  his 
or  her  property  goes  to  the  survivor.  If  a  husband  deprives  his  wife  by  will  of 
more  than  half  his  property,  she  may  elect  to  accept  the  conditions  of  his  will,  or 
cake  half  of  his  property.  Dower  and  curtesy  are  abolished.  She  may  carry  on 
trade,  and  her  earnings  are  her  separate  property.     She  attains  majority  at  i8. 


KENTUCKY. 

In  Kentucky,  the  husband  has  no  interest  in  the  real  estate  or  real  chattels  of 
the  wife,  except  the  use  of  them,  with  power  to  rent  real  estate  for  three  years  at  a 
time.  Such  estate  is  only  liable  for  her  antenuptial  debts,  and  for  contracts  for 
necessaries  for  the  family,  the  husband  included,  when  evidenced  by  writing  signed 
by  her.  Her  chattels  real  may  be  conveyed  in  the  same  way  as  land,  and  the  pro- 
ceeds go  to  the  husband,  unless  otherwise  provided.  He  is  not  liable  for  her  ante- 
nuptial debts  except  to  the  amount  received  by  her  independent  of  real  estate. 
Provision  exists  for  a  married  woman's  acting  as  feme  sole  in  case  of  abandonment, 
imprisonment  of  husband,  etc.  The  wife  of  a  non-resident  husband  may  act  as  a 
feme  sole.  An  alien  wife  of  a  citizen  husband  may  inherit  property.  The  deeds  of 
2L.feme  covert  may  be  either  joint  or  separate,  and  must  be  separately  acknowledged. 
Marriage  agreements  must  be  recorded.  She  has  the  general  rights  of  an  unmar- 
ried woman  in  regard  to  stock  held  for  her  exclusive  use.  Real  or  personal  estate 
conveyed  or  devised  to  her,  except  as  a  gift,  cannot  be  aliened  without  the  consent 
of  her  husband.  Provision  exists  for  the  sale  of  married  women's  property.  A 
married  woman  may  dispose  of  her  separate  property  by  will,  or  in  the  execution 
of  a  power.  Wills  are  revoked  by  a  subsequent  marriage,  except  when  made  under 
power  of  appointment,  when  the  estate  would  not,  in  default  of  such  appointment, 
go  to  the  heirs.  A  husband  is  entitled  to  his  deceased  wife's  personal  estate.  A 
widow  is  entitled  to  one-third  of  her  husband's  personal  estate  if  he  leave  issue, 
otherwise  to  one-half.     She  may  deposit  in  bank  and  check,  as  if  sole;  but  rights 


MARRIED    WOMEN. 


47 


of  third  parties  are  not  affected  if  bank  has  notice.  When  there  is  no  appearance 
of  fraud,  on  joint  application  of  husband  and  wife,  court  may  empower  her  to  use, 
sell,  and  convey,  for  her  own  benefit,  any  property  she  may  own  or  acquire  ;  and  to 
trade  in  her  own  name,  as  a  /eme  sole,  and  dispose  of  her  property  by  deed  or  by 
will ;  and  in  all  cases  it  is  free  from  the  debts  of  her  husband,  and  liable  for  her  own. 

LOUISIANA. 

In  Louisiana,  the  wife  cannot  appear  in  court  without  the  authority  of  her  hus- 
band, though  she  may  be  a  public  merchant,  or  hold  her  property  separate  from 
him.  Even  then,  she  cannot  alienate,  mortgage,  or  acquire  by  gratuitous  or  unen- 
cumbered title  without  his  written  consent.  She  may  be  authorized  by  the  judge 
of  probate  upon  his  refusal,  and,  if  separated  from  bed  and  board,  has  no  need  of 
the  authorization  of  her  husband.  If  a  public  merchant,  she  may,  without  being 
empowered  by  him,  obligate  herself  in  anything  relating  to  her  trade ;  her  husband 
is  also  bound,  if  there  is  a  community  of  property.  She  is  considered  a  public 
merchant  if  she  carries  on  a  separate  trade,  but  not  if  she  retails  only  the  merchan- 
dise of  the  commerce  carried  on  by  him.  If  the  husband  is  under  interdiction,  or 
absent,  the  judge  may  authorize  her  to  act  as  if  unmarried.  She  may  make  a  will 
without  his  authority.  But  she  cannot  become  an  executrix  without  his  consent  or 
the  court's.  She  may  act  as  a  mandatary.  Neither  party  can  be  a  witness  for  or 
against  the  other.  They  may,  by  marriage  contract,  determine  the  rights  of  prop- 
erty, but  cannot  change  the  legal  order  of  descents,  nor  derogate  from  the  husband's 
rights  over  the  person  of  his  wife  and  children,  or  as  head  of  the  family,  nor  with 
respect  to  children  if  he  survive  the  wife,  nor  from  the  prohibitory  dispensations  of 
the  Code.  The  property  of  married  persons  is  divided  into  "  separate  "  and  "  com- 
mon"; and  the  separate  property  of  the  wife  into  "dotal"  and  "extra  dotal,"  or 
"  paraphernal."  The  "  dotal "  is  that  which  the  wife  brings  to  the  husband  to 
assist  him  in  bearing  the  expenses  of  the  marriage  establishment.  Full  provisions 
exist  as  to  the  settlement,  administration,  recovery,  subject-matter,  etc.,  of  dowry, 
and  the  rights  of  both  parties  therein,  and  as  to  the  administration,  fruits,  etc.,  of 
the  extra-dotal  effects.  The  wife  has  a  legal  mortgage  on  her  husband's  immova- 
bles, for  the  restitution  of  her  dower,  which  he  may  release  by  giving  a  special 
mortgage  to  the  satisfaction  of  a  family  meeting,  etc.,  or  in  accordance  with  stipula- 
tions in  the  marriage  contract ;  but  it  shall  not  be  lawful  to  stipulate  that  no  mort- 
gage shall  exist.  This  mortgage  must  be  recorded  to  avail  against  third  persons, 
A  partnership,  or  community,  of  acquests  or  gains  exists  by  operation  of  law  in  all 
cases.  But  the  parties  may  modify  or  limit  it,  or  agree  that  it  shall  not  exist;  in 
which  case  there  are  provisions  preserving  to  the  wife  the  administration  and 
enjoyment  of  her  property,  and  the  power  of  alienating  it  as  if  paraphernal,  with 
reference  to  the  expenses  of  the  marriage  and  liability  of  the  husband.  This  com- 
munity consists  of  the  profits  of  all  the  effects  of  which  the  husband  has  the  admirir 
istration  and  enjoyment,  either  of  right  or  in  fact,  of  the  produce  of  the  reciprocal 
industry  and  labor  of  both  husband  and  wife,  and  of  the  estates  which  they  may 
acquire  during  marriage,  either  by  donations  made  jointly  to  them  both,  or  by  pur- 
chase, or  in  any  similar  way,  even  though  the  purchase  be  in  the  name  of  one,  and 
not  of  both.  Debts  contracted  during  marriage  enter  into  this  partnership,  and 
must  be  acquitted  out  of  the  common  fund  ;  but  those  contracted  before  marriage, 
out  of  individual  effects.     The  husband  is  the  head  and  master  of  the  community. 


48  MARRIED    WOMEN. 

administers  its  effects,  disposes  of  the  revenue,  and  may  alienate  by  an  unencum- 
bered title,  without  the  wife's  consent.  There  are  special  provisions  as  to  convey- 
ances and  dispositions  of  the  community  property  and  gains;  effect  of  dissolution  of 
marriage;  ability  of  the  wife  to  exonerate  herself  from  debts  contracted  during  mar- 
riage by  renouncing  the  partnership;  effect  of  such  renunciation;  death;  survivor- 
ship; separation  a  mensa  et  thoro;  separation  of  property  during  coverture;  rights 
of  creditors,  etc.  Either  party,  by  marriage  contract  or  during  marriage,  may  give 
to  the  other  all  he  or  she  might  give  to  a  stranger.  Property  acquired  in  the  State 
by  non-resident  married  persons,  whether  the  title  is  in  the  name  of  either  or  in 
their  joint  names,  is  subject  to  the  same  provisions  as  if  owned  by  citizens  of  the 
State.  If  husband  or  wife  die  intestate,  without  ascendants  or  descendants,  his  or 
her  share  in  the  community  property  is  held  by  the  survivor  in  usufruct  for  life;  if 
the  deceased  intestate  leave  issue  of  the  marriage,  the  survivor  holds  such  issue's 
inheritance  in  usufruct  till  death  or  second  marriage.  Wife  may  petition  for  separa- 
tion of  property  when  her  husband's  affairs  are  in  such  a  state  that  her  interests  are 
in  danger. 

MAINE. 

In  Mai.ne,  a  married  woman  holds  as  her  separate  property  whatever  she  pos. 
sessed  before  marriage,  and  whatever  comes  to  her  after  marriage,  unless  purchased 
by  the  husband's  money  or  coming  from  him  so  as  to  defraud  his  creditors,  and  hag 
all  the  usual  rights  of  a  single  woman  as  to  it,  but  cannot  convey  property  received 
through  the  husband  or  his  relatives  unless  he  join.  Her  property  is  alone  liable 
for  her  debts  before  marriage.  Although  under  twenty-one  years,  she  is  of  full  age. 
Real  estate  may  be  conveyed  to  a  wife  by  her  husband  as  security  for  a  bona  fidt 
debt,  and  this  may  be  conveyed  by  her  without  his  being  joined  in  the  deed.  Letters 
of  administration  may  be  granted  on  her  estate,  and  all  debts  contracted  for  her 
benefit  shall  be  paid  by  her  executor  and  allowed  him.  She  may  engage  in  trade  on 
her  own  account,  and  any  contract  made  by  her  is  valid,  and  her  property  is  liable 
to  execution  for  her  debts;  his  property  is  exempt  in  any  such  case  unless  he  were  a 
party  to  the  contract.  Her  husband  is  not  liable  for  her  torts.  If  he  abandons  her 
and  leaves  the  State  without  providing  for  her  maintenance,  or  is  confined  in  the 
State  prison,  she  may  be  authorized  by  the  court  to  make  contracts  binding  on  hina 
as  well  as  herself.  Husband  has  no  curtesy  in  wife's  lands  acquired  since  1844,  but 
has  the  use  of  one-third  of  her  lands  for  life.  If  either  husband  or  wife  die  intes- 
tate, leaving  no  issue,  and  the  estate  is  solvent,  the  survivor  has  one-half  of  the  real 
estate  of  the  deceased  for  life.  Her  marriage  annuls  guardianship.  A  woman  over 
18  may  marry  without  consent  of  parent  or  guardian. 

J^IARYLAND. 

In  M.^RYLAND,  the  property  of  a  married  woman,  real  and  personal,  whether 
acquired  before  marriage  or  after,  is  her  separate  property,  and  not  liable  for  the 
debts  of  the  husband;  but  no  conveyance  made  to  her  by  her  husband  in  fraud  of 
creditors  is  valid.  Her  personal  earnings  and  the  income  thereof  belong  to  her, 
and  she  may  hold  and  dispose  of  the  same  in  the  same  manner  as  though  she  were 
unmarried.  The  husband  must  join  in  her  conveyance  of  real  and  personal  estate, 
except  as  above,  but  she  may  devise  the  same  by  will,  as  though  single.  She  may 
appoint  an  agent  or  attorney  to  sell  her  property  by  a  power  of  attorney  executed 
jointly  with  her  husband.  She  may  release  dower  by  a  separate  deed,  or  jointly  with 
her  husband.  She  may  insure  her  husband's  life,  and  on  his  death  may  receive  the 
amouat  of  insurance  free  from  any  cl?''m  of  his  legal  representatives  or  creditors. 


MARRIED    WOMEN.  49 

The  husband  is  not  liable  for  the  wife's  debts  contracted  before  marriage.  If  a  mar- 
ried woman  die  intestate,  leaving  children,  her  husband  has  a  life  estate  in  her  prop- 
erty, real  and  personal;  if  she  leave  no  children,  he  has  a  life  estate  in  her  real  prop- 
erty, and  her  personal  property  vests  in  him  absolutely.  A  married  woman  may 
make  a  will  at  the  age  of  eighteen,  and  an  unmarried  woman  between  eighteen  and 
twenty-one  may  make  a  deed  of  trust  of  her  property  with  approval  of  court  of  equity, 
but  they  are  not  of  full  age  for  other  purposes  till  twenty-one. 

MASSACHUSETTS. 
The  real  and  personal  property  of  a  woman  on  her  marriage  remains  her  separate 
property;  and  a  married  woman  may  receive,  receipt  for,  hold,  manage,  and  dispose 
of  property,  real  and  personal,  as  if  she  were  sole,  except  as  hereinafter  specified. 
She  may  make  contracts  as  though  she  were  sole,  except  with  her  husband.  In  the 
absence  of  express  agreement,  all  work  or  labor  performed  by  her  is  presumed  to  be 
on  her  separate  account.  Husband  and  wife  cannot  transfer  property  to  one  another, 
except  that  the  wife  may  acquire  by  a  gift  from  her  husband  as  her  separate  prop- 
erty articles  of  personal  use  and  adornment  to  a  value  of  not  more  than  two  thou- 
sand dollars,  provided  such  gift  be  not  made  in  fraud  of  creditors.  A  married  woman 
may  be  an  executrix,  administratrix,  guardian,  or  trustee.  She  may  make  a  will  as 
though  sole,  except  that  such  will  shall  not,  without  the  husband's  written  consent, 
deprive  him  of  his  tenancy  by  the  curtesy  in  her  real  estate,  or  his  tenancy  for  life 
in  one-half  her  real  estate  in  case  the  husband  and  wife  have  had  no  issue  born  alive 
which  might  have  inherited  such  estate,  or  of  more  than  one-half  of  her  personal 
estate.  She  may  sue  and  be  sued  as  though  sole.  When  a  married  woman  proposes 
to  do  business  on  her  separate  account,  she  shall  record  in  the  clerk's  office  of  the 
town  or  city  in  which  such  business  is  to  be  carried  on  a  certificate  setting  forth  her 
name  and  that  of  her  husband,  the  nature  of  the  business  and  the  place  where  it  is  to 
be  carried  on.  When  the  nature  of  the  business  or  place  of  carrying  it  on  is  changed, 
a  new  certificate  shall  be  filed.  If  she  fails  to  record  such  certificates  her  husband 
may  do  so.  If  such  certificates  be  not  recorded,  the  property  employed  in  the  busi- 
ness is  liable  to  be  attached  as  the  property  of  the  husband,  and  the  husband  is  liable 
for  contracts  made  in  carrying  on  the  business.  With  these  exceptions,  the  husband 
is  not  liable  for  contracts  made  by  the  wife  in  reference  to  her  separate  property  or 
business,  nor  is  her  property  liable  to  be  taken  on  execution  against  him.  Dower  is 
allowed  in  the  husband's  real  estate,  as  at  common  law,  but  if  he  leaves  no  children 
the  wife  takes  his  real  estate  in  fee,  not  exceeding  five  thousand  dollars  in  value,  and 
also  has  one-half  for  life  of  all  other  real  estate  of  which  he  dies  seized,  unless,  instead 
of  such  life  estate,  she  elects  to  have  her  dower  in  his  real  estate  other  than  that  taken 
by  her  in  fee.  Curtesy  as  at  common  law,  and  if  there  were  no  children  born  alive  of 
the  marriage  he  has  one-half  of  her  lands  for  life.  If  she  die  intestate  and  leave  no 
issue  then  living,  he  takes  her  real  estate  in  fee,  not  exceeding  five  thousand  dollars  in 
value,  and  also  a  life  estate  by  curtesy  in  her  other  real  estate,  or  by  statute  in  one-half 
thereof.  If  he  die  intestate,  leaving  issue,  the  widow  is  entitled  to  one-third  of  the 
residue  of  the  personal  property;  if  no  issue,  to  the  whole  of  the  residue  to  the  amount 
of  five  thousand  dollars,  and  to  one-half  of  the  excess  of  the  residue  above  ten  thou- 
sand dollars.  If  she  die  intestate,  leaving  issue,  he  takes  one-half  of  her  personal 
estate;  if  no  issue,  the  whole. 

MICHIGAN. 

In  Michigan,    all  the  real  and  personal  estate   of  a  married  womAn,  whether 
acquired  before  marriage  or  after,  is  her  separate  property,   free  from  liability  for 
4 


50 


MARRIED    WOMEN. 


her  husband's  debts,  and  she  may  sell,  convey,  encumber,  or  otherwise  dispose  of  the 
same  as  if  sole,  and  she  may  bequeath  the  same  by  will.  She  may  carry  on  business 
in  her  own  name  and  may  make  contracts  binding  her  separate  estate,  but  only  in 
reference  to  her  own  property  and  business.  She  cannot  bind  her  separate  estate  by 
becoming  surety  for  her  husband  or  other  third  person.  She  has  the  same  right  of 
dower  as  at  common  law,  and  may  bar  her  right  of  dower  by  joining  in  her  husband's 
deed.  Tenancy  by  the  curtesy  is  abolished.  All  contracts  (except  of  marriage)  may 
be  made  at  twenty-one  years.     Marriage  contracts  can  be  made  at  sixteen. 

MINNESOTA. 

In  Minnesota,  all  property,  real  or  personal,  owned  by  any  married  woman  at  her 
marriage,  or  received  afterwards,  is  her  own,  as  if  unmarried,  and  is  free  from  the 
control  of  her  husband,  and  is  not  liable  for  his  debts.  She  may  make  any  contract 
she  could  make  if  unmarried,  and  any  transfer  of  her  property,  except  that  the  hus- 
band must  join  in  the  deed  of  her  realty,  unless  he  has  deserted  her  or  is  insane. 
Neither  husband  nor  wife  is  liable  for  the  debts  or  torts  of  the  other,  except  that  the 
husband  is  liable  for  necessaries  furnished  to  the  wife,  as  at  common  law.  Either  may 
be  the  agent  of  the  other,  or  contract  with  the  other,  except  as  to  the  sale  of  real  estate 
from  one  to  the  other.  In  case  of  desertion  or  divorce,  or  when  the  husband  has 
been  for  one  year  insane,  the  wife  may  convey  her  real  estate  as  if  sole,  but  in  the  lat- 
ter case  approval  of  husband's  guardian,  if  any,  is  required.  A  woman  attains  her 
majority  at  eighteen,  but  may  join  her  husband  in  deeds  of  conveyance  though  under 
age.  Dower  and  curtesy  are  abolished.  Surviving  husband  or  wife  is  entitled  to  the 
homestead  of  the  deceased  for  life,  free  from  debts,  and  to  one-third  of  the  remaining 
real  estate  in  fee,  free  from  any  testamentary  or  other  disposition  not  assented  to  in 
writing  by  the  survivor,  but  subject  to  debts. 

MISSISSIPPI. 

In  Mississippi,  married  women  may  acquire,  hold,  sell,  bequeath,  and  in  all  other 
respects  deal  with  their  property,  and  may  make  all  kinds  of  contracts  free  from  any 
of  the  common  law  disabilities.  Gifts  and  conveyances  between  husband  and  wife 
must,  however,  be  in  writing,  acknowledged  and  recorded.  Curtesy  and  dower  are 
abolished.  The  surviving  wife  or  husband  takes  an  equal  share  with  the  children 
severally,  and,  where  there  is  no  surviving  issue,  takes  the  whole  property  in  fee. 

MISSOURI. 

The  real  estate  of  a  married  woman  and  the  income  therefrom  are  not  subject  to 
the  husband's  debts,  nor  can  he  dispose  of  such  estate  unless  she  join  with  him  in 
conveying  it.  But  the  annual  products  of  her  real  estate  are  liable  for  necessaries  for 
the  family  and  improvements  on  such  estate.  She  may  devise  her  real  and  personal 
estate,  but  not  so  as  to  affect  his  curtesy,  and  he  cannot  deprive  her  of  her  right  to 
dower.  All  personal  property  acquired  in  any  way  by  a  married  woman  after 
March,  1875,  is  her  separate  property,  free  from  her  husband's  debts,  except  for 
necessaries  for  herself  and  family.  She  may  sue  and  be  sued  in  reference  to  such 
property  without  joining  her  husband.  She  may  make  contracts  in  her  own  name 
which  will  bind  her  separate  property,  real  and  personal.  Her  separate  property, 
left  to  her  by  will  before  or  after  marriage,  is  not  liable  for  her  husband's  debts. 
Females  are  of  full  age  at  eighteen  years. 


MARRIED    WOMEN.  5 1 

MONTANA. 

In  Montana,  the  property  of  a  married  woman,  whether  acquired  before  or  after 
marriage,  and  the  income  thereof,  is  her  separate  property,  and  not  Hable  for  the 
debts  of  the  husband,  except  for  necessaries  for  herself  and  children  under  eighteen 
years  of  age.  A  list  of  such  property  must  be  recorded  with  the  recorder  of  deeds. 
A  married  woman  may  become  a  sole  trader  by  acknowledging  and  recording  with 
the  county  recorder  of  deeds  a  statement  of  her  intention  so  to  do,  and  of  the  nature 
of  the  business  she  intends  to  transact.  The  husband  is  not  liable  for  debts  con- 
tracted in  such  business.  As  to  married  women  as  sole  traders  see  act  of  March  6, 
1891.  As  to  contracts  by  married  women  see  act  of  March  7,  1887.  Curtesy  and 
dower  are  abolished.  The  surviving  husband  or  wife  has  one-half  of  the  property 
of  the  other  in  fee,  if  there  are  no  children;  if  there  are  children,  one-third.  On  the 
death  of  the  wife  the  entire  community  property  (see  law  of  California)  belongs  to 
the  husband  without  administration.  On  the  death  of  the  husband  one-half  of  the 
community  property  goes  to  the  wife,  the  other  half  being  subject  to  his  testa- 
mentar)-  disposition.  A  married  woman  over  eighteen  years  of  age  may  dispose  by 
will  of  any  property  held  by  her  in  her  own  right. 

NEBRASKA. 

In  Nebr.\ska,  all  the  property,  real  or  personal,  of  a  married  woman  coming  to 
her  either  before  or  after  marriage,  except  by  gift  from  her  husband,  and  all  the 
rents  and  profits  thereof,  are  her  sole  and  separate  property,  and  may  be  managed 
by  her  alone,  without  interference  by  her  husband,  and  they  are  not  liable  for  his 
debts.  She  may  convey  or  make  any  contract  in  reference  to  it  that  a  married  man 
may  make  as  to  his  property;  may  sue  and  be  sued,  and  carry  on  any  business;  and 
her  earnings  are  her  own.  She  may  make  a  will;  is  not  liable  for  her  husband's 
debts;  property-  of  the  husband  is  not  liable  for  her  debts.  Unless  husband  joins  in 
conveyance  he  is  not  barred  of  her  realty  if  she  die  intestate.  She  must  join  with 
husband  in  conveyance  or  encumbrance  of  homestead.  Women  attain  their  majority 
at  sixteen  if  married,  otherwise  at  eighteen. 

NEVADA. 

In  Nevada,  all  property  of  the  wife,  real  or  personal,  held  at  marriage,  or  after- 
wards acquired  by  gift,  bequest,  devise,  or  descent,  is  her  separate  property;  and  all 
the  husband's  so  held  or  acquired  is  his  separate  property.  All  property  acquired 
otherwise  by  either  party,  after  marriage,  is  common  property.  An  inventor)'  of  her 
property  must  be  made  and  recorded.  She  may  manage  and  dispose  of  her  separate 
property  without  his  consent.  During  the  marriage  the  husband  has  the  exclusive 
control  and  management  of  the  common  property  and  may  sell  and  dispose  of  the 
same  as  his  own.  At  her  death,  if  he  sur\-ive  her,  all  of  the  common  property  goes 
to  him.  If  she  survive  him,  at  his  death  half  of  the  common  property  goes  to  her; 
and  in  case  of  no  testamentary  disposition  and  no  issue  she  takes  the  whole.  Dower 
and  curtesy  are  abolished.  The  separate  property  of  the  wife  is  liable  for  her  ante- 
nuptial debts,  but  his  is  not.  Marriage  contracts,  duly  executed  and  recorded,  may 
vaty  these  rights  and  interests.  Married  women  may  carry  on  and  transact  business 
under  their  own  name,  under  certain  regulations.  Her  earnings  are  not  liable  for 
her  husband's  debts;  they  may  contract  together;  she  may  sue  and  be  sued  alone  if 
li\4ng  separate. 


52 


MARRIED    WOMEN. 


NEW  HAMPSHIRE. 


In  New  Hampshire,  a  married  woman  may  hold  real  or  personal  estate,  and 
convey,  sell,  devise,  and  bequeath  the  same  as  freely  as  if  sole.  She  is  entitled  to 
the  absolute  control  of  her  own  earnings,  and  is  not  liable  for  the  debts  of  the  hus- 
band. She  may  make  contracts  in  her  own  name,  buy  goods,  give  notes,  and  trans- 
act any  business  whatever,  as  if  sole,  and  bind  her  own  property,  in  the  course  of 
such  business,  for  her  own  benefit,  and  without  the  intervention  of  the  husband;  but 
she  is  not  liable  as  surety  for  her  husband,  or  in  any  undertaking  in  his  behalf.  He 
is  not  liable  for  her  debts  contracted  before  marriage.  Husband  cannot  convey  real 
estate  to  the  wife.  In  case  of  desertion,  or  when  the  husband  is  a  spendthrift, 
insane,  or  under  guardianship,  the  wife  has  all  the  rights  of  z.  feme  sole.  A  married 
woman  may  make  a  will. 

NEW  JERSEY. 

Property  owned  by  a  woman  at  the  time  of  her  marriage,  or  afterwards  acquired 
by  gift,  grant,  descent,  devise,  or  bequest,  and  the  income  therefrom,  is  her  separate 
property,  not  subject  to  the  disposal  of  her  husband,  or  liable  for  his  debts.  She 
may  bind  herself  by  contract  in  the  same  manner  as  though  unmarried,  and  may  sue 
and  be  sued  on  such  contracts  without  her  husband,  but  she  cannot  be  an  accommo. 
dation  endorser  or  a  surety,  nor  is  she  liable,  on  any  premise,  to  answer  for  the  debt 
or  default  of  any  other  person.  She  cannot  convey  or  encumber  real  estate  without 
her  husband.  If  she  is  living  in  state  of  separation  under  a  decree  or  without  a 
decree,  if  there  is  no  issue,  she  may  convey  certain  interests  in  certain  lands.  Her 
separate  property  is  not  liable  for  debts  contracted  for  the  support  of  herself  oi 
family  as  her  husband's  agent,  nor  is  she  liable  for  family  expenses,  except  by  express 
contract  in  her  own  name.  When  a  man  refuses  or  neglects  to  support  his  wife,  and 
she  lives  separate  from  him,  she  may,  by  order  of  court,  sell,  mortgage,  or  lease  her 
lands,  and  may  sue  her  husband  in  all  matters  relating  to  her  separate  property,  as 
though  unmarried.  A  married  woman  may  make  a  will,  but  cannot  defeat  her  hus- 
band's rights  in  her  real  estate. 

NEW  MEXICO. 

All  property  owned  by  any  woman  at  the  time  of  her  marriage,  or  afterwards 
received,  is  her  private  property,  and  is  free  from  liability  for  her  husband's  debts. 
Her  separate  estate  is  liable  both  for  her  torts  and  contracts.  Neither  husband  nor 
wife  is  liable  for  the  contracts  of  the  other,  except  those  made  after  marriage  for 
necessaries  furnished  to  either  or  to  their  children.  The  husband  must  join  in  con- 
veyances of  the  wife's  real  estate.  He  has  the  control  and  management  of  his  wife's 
property,  and  the  proceeds  become  their  joint  property.  On  the  death  of  the  hus- 
band the  widow  in  the  first  place  receives  her  private  property,  to  secure  which  she 
has  a  lien  prior  to  other  creditors.  After  paying  off  debts  and  deducting  the  hus- 
band's private  estate,  the  remainder  of  the  property  is  divided  equally  between  the 
husband's  estate  and  the  wife,  this  being  termed  "acquest  property,"  and  belonging 
equally  to  the  two.  If  the  husband  dies  without  issue,  the  whole  of  the  acquest 
property  goes  to  the  wife.  A  married  woman  may  make  a  will.  Males  under  twenty- 
one  and  females  under  eighteen  cannot  marry  without  consent  of  parents  or 
guardians. 


MARRIED    WOMEN. 


NEW  YORK. 


53 


The  real  and  personal  property  of  any  woman  acquired  before  or  after  marriage 
remains  her  separate  property,  not  liable  for  her  husband's  debts.  She  may  take 
property  from  any  source  except  her  husband.  Marriage  contracts  are  allowed.  She 
may  carry  on  a  trade  or  business  on  her  separate  account,  may  manage  her  property 
and  business  free  from  the  control  of  her  husband,  and  may  dispose  of  her  real  or 
personal  estate.  Her  bargains  do  not  bind  her  husband.  She  may  sue  and  be  sued 
in  regard  to  her  person  or  separate  property.  Transfers  of  real  estate  may  be  made 
directly  between  husband  and  wife.  Her  husband  is  liable  for  her  antenuptial  debts 
to  the  extent  of  the  assets  received  from  her.  She  may  insure  his  life  for  her  benefit, 
provided  the  premium  does  not  exceed  five  hundred  dollars.  She  may  hold  patents 
for  her  inventions,  and  may  vote  on  stock  held  by  her.  She  may  be  a  guardian, 
executrix,  or  administratrix,  and  may  give  the  necessary  bonds.  She  may  make  a 
will.  She  may  make  a  power  of  attorney,  as  if  single.  Age  of  consent  is  for  females 
sixteen  and  for  males  eighteen. 

NORTH  CAROLINA. 

All  the  property,  real  and  personal,  of  a  married  woman,  whether  acquired  before 
or  after  marriage,  is  her  separate  property,  and  is  not  liable  for  the  debts  or  obliga- 
tions of  her  husband.  Marriage  settlements  are  invalid  as  against  creditors  existing 
at  the  time  of  the  making  the  same.  Her  husband  is  not  liable  for  her  debts,  con- 
tracts, or  wrongs  made  or  committed  before  marriage.  She  cannot  make  contracts 
A'ithout  her  husband's  written  consent,  except  for  necessary  personal  expenses,  or 
for  the  support  of  the  family,  or  in  payment  of  antenuptial  debts,  unless  she  is  a 
free-trader.  A  wife  abandoned  by  her  husband  may  contract  and  bind  her  separate 
estate.  The  savings  from  the  income  of  the  separate  property  of  the  wife  belong  to 
aer.  She  may  make  a  will,  provided  she  do  not  deprive  her  husband  of  his  curtesy, 
md  may  convey  her  property  with  his  written  consent.  She  may  insure  his  life  for 
jer  benefit,  if  the  premium  do  not  exceed  three  hundred  dollars.  Females  are  of  age 
it  twenty-one. 

NORTH  DAKOTA. 

A  married  woman  may  own  in  her  own  right  real  and  personal  property,  and 
manage,  sell,  convey,  and  devise  the  same  as  freely  as  though  unmarried.  She  may 
make  contracts  and  sue  and  be  sued  thereon.  Neither  husband  nor  wife  has  any 
interest  in  the  property  of  the  other,  or  is  answerable  for  the  other's  acts.  Husband 
and  wife  may  make  contracts  with  each  other  respecting  property  as  though  unmar- 
ried. The  earnings  or  separate  property  of  the  wife  are  not  liable  for  the  debts  of 
the  husband.  Women  attain  their  majority  at  eighteen.  Curtesy  and  dower  are 
abolished. 

o?no. 

All  property,  real  or  personal,  belonging  to  a  woman  at  her  marriage,  or  after- 
wards acquired  by  conveyance,  gift,  devise,  or  inheritance,  or  by  purchase  with  her 
separate  money  or  means,  or  due  as  wages  of  her  personal  labor,  or  growing  out  of 
any  violation  of  her  personal  rights,  together  with  the  income  therefrom,  is  her  sepa- 
rate property,  is  under  her  sole  control,  and  not  liable  for  any  debts  of  her  husband. 
She  may  sue  and  be  sued  in  her  own  name,  and  may  contract  in  the  same  manner 
and  to  the  same  extent  as  though  unmarried.  A  married  woman  whose  husband 
deserts  her,  or,  from  intemperance  or  other  cause,  neglects  to  provide  for  his  family, 


54 


MARRIED    WOMEN. 


may,  in  her  own  name,  contract  for  the  labor  of  herself  and  her  minor  children,  and 
collect  the  earnings  thereof,  and  may,  by  application  to  the  court  of  common  pleas, 
be  vested  with  the  rights  and  obligations  of  head  of  a  family  as  to  the  care  and  con- 
trol of  minor  children  and  the  disposition  of  her  real  property,  free  from  the  curtesy 
of  her  husband.  A  married  woman  may  make  a  will.  Women  attain  their  majority 
at  the  age  of  eighteen.    The  husband  is  not  liable  for  the  wife's  contracts  or  torts. 

OKLAHOMA. 
A  married  woman  may  own,  manage,  sell,  convey,  and  devise  property,  real  and 
personal,  acquired  by  gift,  descent,  or  purchase,  and  make  contracts  and  incur  lia- 
bihties,  in  the  same  manner  as  if  unmarried.  Neither  husband  nor  wife  has  any 
interest  in  the  property  of  the  other,  but  neither  can  be  excluded  from  the  other's 
dwelling.  Husband  and  wife  may  contract  with  each  other,  or  with  others,  respect- 
ing property,  subject  as  between  themselves  to  the  rules  of  law  as  to  persons  in  confi- 
dential relations.  Neither  is  answerable  for  the  acts  of  the  other.  Earnings  of  wife 
and  of  minor  children  living  with  her  while  she  is  living  separate  from  her  husband 
are  her  separate  property.  The  separate  property  of  wife  is  not  liable  for  debts  of 
husband,  but  is  liable  for  her  own  debts  contracted  before  or  after  marriage,  except 
for  those  contracted  for  the  support  of  herself,  her  children,  or  family  as  her  hus- 
band's agent.  She  may  buy  and  sell  goods,  give  notes  or  other  obligations,  and  sue 
and  be  sued,  as  if  unmarried.     Women  attain  majority  at  eighteen. 

OREGON. 

The  property  of  a  married  woman,  whether  acquired  before  marriage  or  after,  is 
her  separate  property,  and  is  not  liable  for  the  debts  of  the  husband.  She  may  man- 
age, sell,  convey,  or  devise  the  same  by  will,  to  the  same  extent  and  in  the  same 
manner  that  her  husband  can  property  belonging  to  him.  Husband  and  wife  may 
convey  property  to  one  another.  Neither  is  liable  for  the  contracts  of  the  other.  By 
special  statute  all  civil  disabilities  which  are  not  imposed  upon  the  husband  are 
removed  from  the  wife,  except  the  right  to  vote  and  hold  office.  Women  attain  their 
majority  at  eighteen,  or  on  marriage.  Dower  as  at  common  law.  Husband  may  be 
ordered  to  support  wife  and  minor  children. 

PENNSYLVANIA. 

By  a  recent  statute  the  disabilities  of  married  women  as  to  the  acquisition,  con- 
trol, and  disposition  of  property,  and  the  right  to  make  contracts  have  been  substan- 
tially removed.  Every  married  woman  has  the  right  to  acquire,  hold,  control,  and 
dispose  of  her  property,  real  and  personal,  in  the  same  manner  as  though  unmarried, 
except  that  she  cannot  mortgage  or  convey  real  estate  unless  her  husband  joins  in  the 
conveyance. 

Property  of  every  kind  owned,  acquired,  or  earned  by  her  before  or  after  mar- 
riage belongs  to  her  and  not  to  her  husband  or  his  creditors.  She  may  make  any 
contract  relating  to  any  business  in  which  she  may  engage,  or  for  necessaries,  or  in 
relation  to  her  separate  estate,  and  may  sue  or  be  sued  thereon,  or  for  torts  done  to 
or  committed  by  her,  without  joining  her  husband,  and  any  recovery  by  or  against 
her  will  affect  only  her  separate  estate,  but  she  cannot  become  accommodation 
endorser,  guarantor  or  surety  for  another.  She  may  make  leases  of  her  separate 
property,  real  and  personal,  and  assignments,  transfers,  and  sales  of  her  separate  per- 
sonal property,  notes,  bills,  drafts,  and  obligations  of  every  kind  without  her  husband 
joining.    She  may  dispose  of  her  property,  real  and  personal,  by  will  signed  by  her 


MARRIED    WOMEN.  55 

as  though  unmarried.  Widow  takes  for  life  one-third  (or  if  no  issue  living,  one- 
half)  of  all  real  estate  owned  by  husband  at  any  time  during  marriage,  unless  she  has 
released  dower,  or  the  land  has  been  sold  under  execution.  Husband  has  wife's 
lands  for  life  whether  there  be  issue  or  not. 

RHODE  ISLAND. 
The  property  of  a  married  woman,  whether  acquired  before  or  after  marriage, 
including  that  acquired  by  her  own  industry,  together  with  the  income  from  the 
same,  is  not  liable  for  her  husband's  debts,  and  on  his  death  remains  her  sole  and 
separate  property.  Her  chattels  real,  furniture,  plate,  jewels,  shares  in  an  incor- 
porated company,  money  deposited  in  a  savings  bank,  or  debts  due  her  and  secured 
by  mortgage,  may  be  transferred  by  the  joint  deed  of  herself  and  husband.  All 
other  personal  estate  she  may  dispose  of  as  though  unmarried,  but  she  cannot  trans- 
act business  as  a  trader,  or  bind  herself  by  promissory  note.  She  may  dispose  of  her 
property  by  will,  but  not  so  as  to  impair  her  husband's  curtesy.  Her  separate 
statutory  property  is  not  liable  for  the  expenses  of  the  family,  or  for  the  support  of 
herself  or  children,  or  her  other  debts,  but  property  held  for  her  benefit  under 
express  trusts  may  be  subject  to  her  contracts  generally.  A  married  woman  coming 
from  another  State  whose  husband  has  never  lived  with  her  in  the  State,  after  a 
year's  continuous  residence,  may  transact  business,  make  contracts,  dispose  of  prop- 
erty acquired  by  her,  and  have  the  custody  of  her  minor  children.  A  married  or 
unmarried  woman  is  of  age  at  twenty-one. 

SOUTH  CAROLINA. 
In  South  Carolina,  the  real  and  personal  property  of  a  married  woman,  whether 
held  by  her  at  the  time  of  the  marriage,  or  accrued  to  her  thereafter  in  any  way,  and 
all  her  earnings  and  income,  shall  be  her  separate  property,  and  not  subject  to  levy 
or  sale  for  her  husband's  debts.  She  may  bequeath,  devise,  or  convey  her  separate 
property,  as  if  unmarried;  and,  if  she  die  intestate,  her  property  shall  descend  in  the 
same  manfier  as  is  provided  for  the  property  of  husband.  She  may  purchase  any 
property  and  contract  in  reference  to  it  as  if  unmarried.-  Her  husband  is  not  liable 
for  her  debts  contracted  before  marriage,  nor  for  those  contracted  after,  except  for 
her  necessary  support.  She  cannot  become  an  accommodation  endorser  or  surety, 
or  be  liable  on  any  promise  to  pay  the  debts  or  be  answerable  for  the  liabilities  of 
another.  When  the  action  concerns  her  separate  property  she  may  sue  and  be  sued 
alone,  and  judgment  may  be  entered  against  her  separately,  and  execution  be  levied 
on  her  separate  property.     Tenancy  by  the  curtesy  is  abolished. 

SOUTH  DAKOTA. 
A  married  woman  may  own  in  her  own  right  real  and  personal  property,  and 
manage,  sell,  convey,  and  devise  the  same  as  freely  as  though  unmarried.  She  may 
make  contracts  and  sue  or  be  sued  thereon.  Neither  husband  or  wife  has  any  interest 
in  the  property  of  the  other,  or  is  answerable  for  the  other's  acts.  Husband  and 
wife  may  make  contracts  with  each  other  respecting  property  as  though  unmarried. 
The  earnings  or  separate  property  of  the  wife  are  not  liable  for  the  debts  of  the  hus- 
band.    Women  attain  their  majority  at  eighteen.     Curtesy  and  dower  are  abolished. 

TENNESSEE. 
The  husband's  interest  in  his  wife's  lands  cannot  be  taken  by  legal  process  for 
his  debts,  nor  can  he  sell  it  unless  she  join  in  the  deed.     Personal  property  of  the 


56  MARRIED    WOMEN. 

wife  is  exempt  from  liability  for  her  husband's  debts  contracted  before  marriage. 
Otherwise,  her  general  personal  property,  whether  acquired  before  marriage  or  after, 
becomes,  after  being  reduced  to  possession  by  the  husband,  his  property,  and  is  sub- 
ject to  his  debts,  contracts,  and  disposition  as  his  own,  but  property  owned  by  her 
at  marriage  or  afterwards  acquired  by  devise  or  descent  is  liable  first  to  her  creditors. 
He  is  not  liable  for  her  antenuptial  contracts.  Her  separate  property  is  not  liable 
for  his  debts  otherwise  than  as  authorized  in  the  instrument  under  which  she  acquired 
it.  She  cannot  contract  to  sell  her  real  estate,  but  may  convey  it  jointly  with  her 
husband  on  private  examination,  and  may  convey  without  him,  subject  to  his  curtesy. 
If  living  apart  from  her  husband  she  may  dispose  of  her  lands  as  an  unmarried 
woman.  Her  separate  property  she  can  dispose  of  by  deed  or  will,  as  though  anmar- 
ried,  unless  the  power  of  disposition  is  expressly  withheld.  Her  separate  property  is 
not  liable  for  her  support  or  that  of  her  children  unless  she  expressly  consent.  Gen- 
erally the  wife,  as  at  common  law,  has  no  power  to  bind  herself  or  her  property  by 
contract,  and  she  cannot  do  business  as  a  feme  sole.  If  husband  or  wife  effect 
insurance  on  his  life,  upon  his  death  the  money  goes  to  his  wife  and  children,  free 
from  his  debts. 

TEXAS. 

In  Texas,  the  marriage  of  a  female  minor  gives  her  all  the  right  she  would  have 
if  of  age.  All  property  acquired  by  either  party  before  marriage,  or  by  gift,  devise, 
or  descent  afterwards,  is  the  separate  property  of  each,  but  the  husband  has  the 
management  of  the  whole.  Property  acquired  by  either  during  marriage  in  other 
ways  is  common;  the  husband  may  dispose  of  it  during  coverture,  and  it  is  liable  for 
his  debts,  and  for  her  debts  contracted  for  necessaries.  If  there  are  no  children  the 
whole  goes  to  the  survivor,  otherwise  one-half.  The  parties  may  be  jointly  sued  on 
contracts  of  the  wife  for  necessaries  and  for  expenses  benefiting  her  separate  estafe. 
Execution  may  be  levied  on  common  property,  or,  if  there  be  none,  on  her  separate 
property.  Marriage  agreements  must  be  made  before  a  notary,  and  may  be  acknowl- 
edged by  a  minor,  with  the  parent's  or  guardian's  consent,  and  are  unalterable  after 
marriage.  A  reservation  of  property  therein  to  be  good  must  be  recorded.  Husband 
and  wife  may  sue  jointly  and  separately  for  her  effects.  The  wife  acts  jointly  with 
her  husband  when  she  is  appointed  executrix  or  administratrix.  On  the  death  of 
either  the  survivor  takes  the  common  property,  subject  to  its  debts,  nor  is  it  neces- 
sary for  the  husband  to  administer  on  such  property  on  her  death,  as  he  has  the 
same  control  of  it  then  that  he  had  in  her  lifetime.  In  case  of  his  death  she  has  the 
same  control  till  she  marries,  when  it  will  be  subject  to  administration.  Dower  is 
abolished.  Husband  may  fill  antecedent  contracts  and  be  compelled  to  give  bonds 
for  the  proper  management  of  the  common  property.  Her  separate  property  is  not 
chargeable  with  necessaries  procured  for  him.  The  common  property  is  liable  for 
all  debts  contracted  during  marriage.  A  married  woman  cannot  contract  as  a  partner 
in  business  or  embark  her  separate  means  in  trade.    Females  are  of  age  at  twenty-one. 

UTAH. 

All  property  owned  by  either  husband  or  wife,  whether  acquired  before  or  after 
marriage,  is  separate  property  and  may  be  held  and  disposed  of  without  limitation  or 
restriction  by  reason  of  coverture.  A  married  woman  may  carry  on  business  with 
her  separate  property,  and  her  notes  and  contracts  in  reference  to  such  business  are 
binding  on  her.     She  may  make  a  will,  as  if  sole.     Dower  is  abolished. 


MARRIED    WOMEN. 


VERMONT. 


57 


The  real  estate  of  a  married  woman,  and  the  rents,  issues,  and  products  thereof, 
and,  during  coverture,  her  husband's  interest  in  the  same,  cannot  be  levied  upon  for 
the  sole  debts  of  the  husband,  except  that  such  annual  products  may  be  taken  for 
debts  created  for  necessaries  for  his  wife  and  family,  or  for  labor  or  materials  fur- 
nished upon,  or  for  cultivation  or  improvement  of  such  real  estate.  A  married 
woman's  separate  property,  whether  acquired  before  or  after  marriage,  is  not  liable 
for  her  husband's  debts,  or  for  debts  contracted  for  the  support  of  herself  or  chil- 
dren. All  personal  property  acquired  by  a  married  woman  during  coverture  by 
inheritance  or  distribution  is  held  to  her  sole  and  separate  use.  Her  earnings  are 
not  subject  to  attachment  by  trustee  process  for  her  husband's  debts.  The  husband 
must  join  in  conveyance  of  her  real  estate.  Dower  is  allowed  only  in  real  estate  of 
which  the  husband  died  seized.  Ordinarily  a  married  woman  can  make  no  contracts, 
but  if  she  carries  on  business  in  her  own  name  she  may  sue  or  be  sued  in  all  matters 
connected  therewith,  and  her  separate  estate  is  liable  for  her  contracts.  Females 
become  of  age  at  eighteen.  A  married  woman  may  dispose  of  her  property,  real  and 
personal,  by  will.  A  married  woman  may  be  guardian  of  her  husband,  but  she  can- 
not be  guardian  of  any  other  person,  nor  executrix,  administratrix,  nor  trustee. 

VIRGINIA. 

All  real  and  personal  estate  to  which  any  woman  is  entitled  at  the  time  of  her 
marriage,  or  which  she  may  subsequently  acquire,  is  her  separate  estate,  not  subject 
to  the  use,  control,  or  disposal  of  her  husband,  or  to  liability  for  his  debts.  She 
may  manage  and  dispose  of  her  property  as  if  sole,  except  that  she  cannot  deprive 
her  husband  of  his  right  to  curtesy  in  her  real  estate.  She  may  engage  in  trade  and 
carry  on  business  as  if  unmarried,  and  the  proceeds  of  her  labor  and  earnings  of  her 
business  are  her  separate  property.  She  may  make  contracts  and  sue  and  be  sued 
thereon  as  though  unmarried,  and  any  judgment  against  her  maybe  enforced  against 
her  separate  estate.  Her  contracts  in  reference  to  her  separate  estate,  business,  or 
labor  are  not  binding  upon  her  husband  or  his  estate,  and  when  married  after  March 
31,  1S75,  he  is  not  liable  for  her  antenuptial  debts.  Every  contract  made  by  a  mar- 
ried woman  is  presumed  to  be  with  reference  to  her  separate  estate  and  binding 
thereon.  If  husband  wilfully  abandons  or  deserts  his  wife,  and  such  abandonment 
or  desertion  continues  until  her  death,  he  loses  all  rights  in  her  separate  estate. 

WASHINGTON. 

All  property,  real  and  personal,  owned  by  the  husband  or  wife  before  marriage, 
and  that  acquired  afterwards  by  gift,  devise,  or  descent,  is  separate  property.  All 
property  acquired  during  marriage,  except  by  gift,  devise,  or  descent,  is  their  com- 
mon property.  The  husband  has  the  management  and  control  of  the  community 
property  and  may  dispose  of  the  personal  property,  but  cannot  sell  or  encumber  the 
real  estate  unless  the  wife  joins.  A  married  woman  may  contract,  and  sue  and  be 
sued,  as  though  unmarried.  All  laws  imposing  civil  disabilities  on  the  wife  which 
are  not  imposed  also  upon  the  husband  are  abolished.  The  rights  of  both  parents  to 
the  care  and  custody  of  children  are  equal.  Dower  and  curtesy  are  abolished. 
A  woman  may  make  a  will  at  the  age  of  eighteen. 


58  MARRIED    WOMEN. 

WEST  VIRGINIA. 
In  West  Virgixia,  the  real  and  personal  property  of  a  married  woman  acquired 
from  any  person  other  than  her  husband  is  secured  to  her  separate  use,  free  from  the 
control  or  debts  of  her  husband.  And  her  earnings,  and  the  real  and  personal  prop- 
erty purchased  with  the  proceeds  thereof,  remain  her  separate  property  free  from  his 
control  or  debts.  If  living  separate  and  apart  from  her  husband,  she  may  convey 
her  property,  otherwise  if  the  property  be  real  estate,  her  husband  must  join  in  the 
deed.  She  may  insure  her  husband's  life  for  her  own  benefit,  provided  the  premium 
does  not  exceed  one  hundred  and  fifty  dollars.  She  may  hold  and  enjoy  patents  for 
her  inventions  ;  may  make  deposits  in  the  bank  ;  may  hold  stock  in  corporations 
(other  than  mutual  fire  insurance  companies),  and  vote  on  the  same.  Her  husband 
is  liable  for  her  debts  contracted  before  marriage  only  to  the  extent  of  the  property 
received  by  him  through  her.  She  may  sue  and  be  sued  alone  in  regard  to  her  sepa- 
rate estate,  or  in  suits  between  herself  and  her  husband,  or  when  she  is  living  sepa- 
rate and  apart  from  him  ;  and  she  may  be  a  feme  sole  trader,  if  living  apart  from 
him.     (^See  Chap.  LXVI  of  Code  iSgj.) 

WISCONSIN. 

The  real  and  personal  property  of  the  wife  at  the  time  of  marriage,  and  the 
income  thereof,  and  any  which  she  may  receive  by  inheritance,  gift,  grant,  devise, 
or  bequest  from  any  person  other  than  her  husband,  is  her  separate  property,  not 
subject  to  the  disposal  of  the  husband,  or  liable  for  his  debts.  She  may  convey  her 
property,  real  or  personal,  as  if  unmarried,  and  her  husband  need  not  join  in  her 
deed,  but  will,  notwithstanding,  be  barred  of  any  right  of  curtesy.  A  deed  or  mort- 
gage of  the  homestead  is  void  without  her  signature.  The  wife's  individual  earnings 
are  her  separate  property.  A  policy  of  insurance  for  the  benefit  of  a  married  woman 
inures  to  her  sole  and  separate  use  and  that  of  her  children.  Her  separate  estate  is 
liable  for  debts  contracted  by  her  on  its  credit,  but  is  not  liable  for  family  expenses, 
except  by  express  contract.  She  may  dispose  of  her  separate  estate  in  all  respects  as 
an  unmarried  woman,  and  may  deal  with  her  husband  in  reference  to  such  estate  in 
the  same  manner  as  with  a  stranger.  Women  become  of  age  at  twenty-one,  but  may 
make  a  will  and  for  dower  at  eighteen. 

WYOMING. 

The  rights  of  a  married  woman  in  respect  to  her  property  are  nearly  the  same  as 
though  she  were  unmarried.  She  may  make  a  will,  sue  and  be  sued,  make  contracts, 
carry  on  business,  retain  her  own  earnings,  hold  and  convey  property,  real  and  per- 
sonal, free  from  the  control  or  interference  of  her  husband,  and  from  liability  for  his 
debts.  She  may  hold  office  and  vote  at  elections.  She  cannot,  however,  be  appointed 
administratrix.     Dower  and  curtesy  are  abolished. 

CANADA. 

In  the  provinces  of  the  Dominion,  generally,  a  married  woman  holds  all  her 
property  and  earnings  free  from  the  control  of  her  husband.  It  is  liable  for  her  debts 
before  marriage,  and  her  husband  is  not.  She  may  manage  it  and  bequeath  it.  She 
is  entitled  to  dower,  but  there  is  no  tenancy  by  curtesy.  In  the  Province  of  Quebec 
the  law  is  modified  by  the  French  law.  There  all  the  personal  property  and  gains 
of  both  parties  are  put  together  and  form  the  community  property,  which  the  hus- 
band administers.  Each  can  bequeath  only  his  or  her  interest,  and  the  heirs  of  each 
inherit  the  interest  of  each. 


MARRIED  WOMEN.  59 

It  should  be  added,  that  the  wife  may  everywhere  even  by 
common  law  be  the  agent  of  the  husband,  and  transact  for  him 
his  business  transactions,  making,  accepting,  or  indorsing  bills 
or  notes,  purchasing  goods,  rendering  bills,  collecting  money 
and  receipting  for  it,  and  in  general  entering  into  any  contract 
so  as  to  bind  him,  if  she  has  his  authority  to  do  so.  And  while 
they  continue  to  live  together,  the  law  considers  the  wife  as 
clothed  with  authority  by  the  husband  to  buy  for  him  and  his 
family  all  things  necessary  in  kind  and  quantity  for  the  proper 
support  of  his  family ;  and  for  such  purchases  made  by  her,  he 
is  liable. 

The  husband  is  responsible  for  necessaries  supplied  to  his 
wife,  if  he  does  not  supply  them  himself.  And  he  continues 
so  liable  if  he  turns  her  out  of  his  house,  or  otherwise  separates 
himself  from  her,  without  good  cause.  But  he  is  not  so  liable 
if  she  deserts  him  (unless  on  extreme  provocation),  or  if  he 
turns  her  away  for  good  cause. 

If  she  leaves  him  because  he  treats  her  so  ill  that  she  has 
good  right  to  go  from  him  and  his  house,  this  is  the  same  thing 
as  turning  her  away;  and  she  carries  with  her  his  credit  for  all 
necessaries  supplied  to  her.  But  what  the  misconduct  must  be 
to  give  this  right,  is  uncertain.  Some  English  cases  are  very 
severe  on  this  point.  In  one,  a  husband  brought  a  prostitute 
into  his  house,  and  confined  his  wife  to  her  own  room  under 
pretence  of  her  insanity.  But  the  court  held  this  to  be  insuffi- 
cient. The  Supreme  Court  of  New  York,  in  commenting  upon 
this  case,  said  that  "the  doctrine  contained  in  it  cannot  be  law 
in  a  Christian  country."  In  America  the  law  must  be,  and 
undoubtedly  is,  that  the  wife  is  not  obliged  to  stay  and  endure 
cruelty  or  indecency. 

It  may  be  added,  that  if  a  man  lives  with  a  woman  as  his 
wife,  and  represents  her  to  be  so,  he  is  liable  for  necessaries 
supplied  to  her,  and  for  her  contracts,  in  the  same  way  as  if  she 
were  his  wife ;  and  this  even  to  one  who  knows  that  she  is  not 
his  wife. 

The  statutes  of  which  we  have  given  an  abstract  are  intended 
to  secure  to  a  married  woman  all  her  rights.     But  in  all  parts 


6o  MARRIED   WOMEN. 

of  this  country,  women  about  to  marry — or  their  friends  for 
them — often  wish  to  secure  to  them  certain  powers  and  rights, 
and  to  limit  these  in  certain  ways,  or  to  make  sure  that  their 
property  is  in  safe  and  skilful  hands.  This  can  only  be  done  by 
conveying  and  transferring  the  property  to  Trustees  ;  that  is, 
to  certain  persons  to  hold  the  same  in  trust.  This  is  done  by  a 
legal  instrument,  which  is  almost  always  an  Indenture ;  by 
which  is  meant  an  instrument  under  seal  between  two  or  more 
parties.  This  instrument  must  set  forth  precisely,  and  with 
legal  accuracy,  just  what  the  trust  is;  that  is  to  say,  just  w'hat 
the  trustees,  or  the  woman,  or  her  husband  may  do,  and  just 
what  they  must  do.  This  is  one  of  those  instruments  wdiich 
require  peculiar  care  and  exactness.  We  give  as  models,  or 
forms,  two,  differing  in  their  terms  and  purposes.  Both  were 
drawn  by  very  skilful  lawyers,  and  with  such  changes,  of 
omission  or  addition  or  alteration,  as  the  circumstances  of  any 
case  or  the  wishes  of  the  parties  make  necessary,  will  be  useful 
and  safe  guides  in  the  preparation  of  such  instruments. 

(4.) 

An  Indenture  to  put  in  Trust  the  Property  of  an  Unmarried 

"Woman. 

This  Indenture  of  two  parts,  made  and  concluded  this  day  of 

,  A.D.  eighteen  hundred  and  ,  by  and  between 

ff  ,  single  woman,  of  the  first  part,  and  ,  and 

,  of  ,  of  the  second  part, 

"Witnesseth,  That  the  said  party  of  the  first  j^art  is  seized  and  possessed 
of  certain  real  and  personal  estate,  to  wit,  one  undivided  moiety  of  the 
reversion  in  and  of  a  messuage  and  land  in  ,  bounded  as  follows  : 

a  mortgage  of  a  lot  of  land  bounded  on  Street,  and  described  in  the 

deed  of  to  ,  wliich  is  recorded  in  the  Registry 

of  Deeds,  lib.  ,  fol.  ;  a  mortgage  of  a  lot  of  land  bounded  on 

Street,  and  described  in  the  deed  of  ,  recorded  in 

the  said  Registry,  lib.  ,  fol.  ;  a  mortgage  of  two  lots  of  land 

bounded  on  Street,  and  described  in  the  deed  of  to  , 

recorded  in  the  said  Registry,  lib.  ,  fol.  ;  a  mortgage  of  a  lot  of 

land  bounded  on  Street,  and  described  in  the  deed  of  to 

recorded  in  the  Registry  aforesaid,  lib.  ,  fol.  ;  one  hundred  shares 

in  the  capital  stock  of  the  Bank  in  ;  twenty-five  shares  in 

the  capital  stock  of   the  Bank  in  ;  and  fifty  shares  in  the 


MARRIED  WOMEN.  gj 

capital  stock  of  the  Bank  of  ;  also  a  note  of  hand  signed  by  tlie 

said  ,  for  the  sum  of    fifteen  thousand  dollars;    a  note  of   hand 

signed  by  the  said  ,  for  the  sum  of  three  thousand  dollars;  a  note 

of  hand  signed  by  and  ,  for  the  sum  of  two  thousand 

five  hundred  dollars;  a  note  of  hand  signed  by  ,  for  the  sum  of 

six  thousand  dollars,  which  notes  are  severally  secured  by  the  lands  and 
tenements,  mortgaged  as  aforesaid ;  also  a  note  of  hand  s"gned  by 
for  the  sum  of  one  thousand  dollars. 

All  which  real  and  personal  estate  the  said  party  of  the  first  part  is 
desirous  that  the  party  of  the  second  part  should  have  and  hold  in  trust  for 
certain  uses  and  purposes  hereinafter  set  forth  and  expressed  ;  and  in  con- 
formity with  said  intention,  and  for  the  purpose  of  carrying  the  same  into 
effect,  the  said  party  of  the  first  part,  in  consideration  of  the  sumcf  five 
dollars  paid  to  her  by  the  party  of  the  second  part,  the  receipt  of  which  she 
doth  hereby  acknowledge,  and  for  divers  other  good  considerations  moving 
her  thereto,  hath  given,  granted,  s  Id,  and  conveyed,  and  doth  give,  grant, 
bargain,  sell,  and  convey,  all  the  said  lands,  tenements,  and  real  estate,  and 
doth  hereby  bargain,  sell,  transfer,  assign,  and  set  over  all  the  aforesaid 
chattels  and  personal  estate,  as  the  same  are  above  specified  and  described, 
unto  the  said  and  ,  and  their  heirs  and  assigns.     To 

have  and  to  hold  the  said  granted  premises  unto  the  said  and 

,  and  their  heirs  and  assigns,  and  to  the  survivor  of  them  and 
his  heirs  and  assigns  forever  to  their  own  use,  but  in  trust  nevertheless  for 
the  purposes,  objects,  and  intents  hereinafter  set  forth  and  expressed,  and 
for  none  other,  namely  : 

First,  That  the  said  trustees  and  their  successors  in  the  said  trust  shall 
permit  the  said  party  of  the  first  p"rt,  without  any  hindrance  or  ir.teiference 
by  them,  so  long  as  she  shall  remain  sole  and  unmarried,  and  shall  see  fit  so 
to  do,  to  receive  and  take  in  her  proper  person,  or  by  her  agent  or  attorney, 
the  rents,  income,  dividends,  interest,  and  profits  of  the  said  trust  estate, 
real  and  personal,  without  any  accountability  therefor,  to  them  the  said 
parties  of  the  second  part ;  but  if  required  by  her,  the  said  party  of  the  first 
part,  so  to  do,  the  said  trustees  and  their  successors  shall  collect  and  receive 
the  said  rents,  income,  and  profits  of  the  trust  estate,  and  shall  from  time  to 
time  pay  over  the  same  unto  the  said  party  of  the  first  part  for  her  own  use. 

Secondly,  That  from  and  after  t'-.e  solemnization  of  the  marriage  of  the 
said  party  of  the  first  part,  whenever  that  event  may  take  place,  the  said 
trustees  and  their  successors  shall  co'dect,  take,  and  receive  all  the  rents, 
income,  and  profits  of  the  trust  estate,  real  and  personal,  and  shall  from 
time  to  time  pay  over  the  same  to  tlie  said  party  of  the  first  part,  to  and 
upon  her  separate  order  or  receipt,  made  and  signed  by  her,  at  or  about  the 
time  of  such  payments  respectively,  and  for  her  pro;5er  use,  free  from  the 
control  or  interference  of  any  husband  she  mav  have. 

Thirdly,  That  at  and  after  the  decease  of  said  party  of  the  first  part,  the 
said  trustees  and  their  successors  shall  be  sci;:ed  and  possessed  of  the  said 


52  MARRIED   II'OJ/EJV. 

trust  estate  to  and  for  the  use  of  such  person  or  persons  as  tlie  said  party  of 
the  first  part,  by  any  last  will  and  testament,  duly  executed,  if  she  die  sole 
and  unmarried,  or,  in  case  she  be  at  her  decease  a  married  woman,  by 
any  paper  writing  signed  by  her  in  presence  of  two  or  m.ore  credible 
witnesses,  shall  order,  and  appoint  to  take,  receive,  and  hold  the  same,  and 
in  such  shares  and  manner,  and  upon  such  terms  and  conditions,  as  she 
shall  c'.irect,  order,  and  appoint  as  aforesaid  ;  and  in  case  the  said  party  of 
the  first  part  shall  omit  to  make  any  such  will  or  testamentary  appointment, 
then  the  said  trustees  and  their  successors  shall  hold  tlie  trust  estate  to  the 
use  of  such  person  or  persons  as  by  the  laws  of  this  Commonwealth  would, 
in  case  the  party  of  the  first  part  had  died  seized  and  possessed  of  the  then 
existing  trust  property  in  her  own  right,  have  been  entitled  to  the  same  as 
heirs-at-law,  or  distributees;  provided  always^  that  in  such  case  the  husband 
of  the  said  party  of  the  first  part,  if  she  leave  a  husband,  shall  be  entitled 
to  his  life  estate  in  all  the  real  estate,  as  if  he  were  tenant  by  the  curtesy  in 
and  of  the  same,  and  be  subject  to  all  the  duties  incident  to  a  tenant  by  the 
curtesy. 

Fourthly^  That  the  said  trustees  and  their  successors  shall  keep  the  sr.id 
trust  estate,  real  and  personal,  constantly  invested  in  the  most  safe  and 
profitable  manner  in  their  power,  but  relying  always  on  their  discretion  in 
this  behalf,  and  shall  accordingly  have  power  to  sell  and  dispose  of  any  of 
the  said  trust  estate,  and  to  make  and  pass  all  necessary  deeds  and  instru- 
ments of  conveyance  thereof,  and  to  purchase  any  other  estate,  real  or 
personal  and  the  same  to  seU  again,  and  so  from  time  to  time  to  change  the 
property  composing  the  trust  fund  and  estate ;  provided  always,  that  all  real 
and  personal  estate  which  may  be  purchased  by  them  the  said  trustees  with 
the  trust  moneys,  or  the  proceeds  of  sale  of  the  tru.;t  property,  shall  be 
conveyed  and  assigned  to  them  and  their  successors  as  trustees  as  aforesaid, 
and  shall  be  holden  always  upon  the  same  trusts,  and  wit!i  the  same  powers, 
and  for  the  same  purposes,  as  are  set  forth  and  declared  in  this  indenture  of 
and  concerning  the  estate  firstly  above  described  and  conveyed  to  the  said 
trustees. 

Fifthly^  That  the  said  trustees  or  tlieir  successors,  in  case  the  said  party 
of  the  first  part  shall  so  order  and  direct,  shall  invest  the  trust  money  or 
estate,  or  such  part  thereof  as  they  shall  be  ordered  as  aforesaid,  in  the 
purchase  of  such  house  for  the  habitation  and  dwelling  of  the  said  party  of 
the  first  part  as  she  may  select,  and  shall  lay  out  and  expend  such  other 
part  of  the  said  trust  money  and  estate  as  she,  the  said  party,  shall  order 
and  direct,  in  the  purchase  of  such  furniture,  plate,  horses,  and  equipages, 
as  she  may  choose  and  select  for  her  own  use  ;  and  shall  permit  her,  the 
said  party  of  the  first  part,  with  any  husband  she  may  have,  to  occupy  and 
inhabit  the  said  house,  and  to  use  and  enjoy  the  said  furniture,  plate, 
carriages,  and  horses  without  impeachment  of  waste,  and  without  any 
accountability  to  them  the  said  trustees  for  the  reasonable  wear  and  use 
thereof,  or  injury  by  casualty;  and  the  trustees   shall  keep  the  said  house 


MARRIED   WOMEN.  ^t^ 

and  furniture  insured  against  fire,  and,  in  case  of  loss  or  injur}-!)}' f.re,  shall 
lay  out  and  expend  the  money  v/hich  they  may  receive  from  the  assurers,  in 
the  repairing  or  rebuilding  of  the  said  house,  if  so  directed  by  tlie  said 
party  of  the  first  part,  and  in  the  purchase  of  other  and  new  furniture,  plate, 
liorses,  and  equipages  in  place  cf  those  which  have  been  injured  or  destroyed 
by  f.re,  and  siiall  permit  the  said  party  of  the  first  part  to  use  and  enjoy  the 
same  in  manner  aforesaid.  And  the  said  trustees  and  their  successors  sliall, 
when  required  by  the  said  party  of  t'.ie  first  part  so  to  do,  sell  and  dispose 
of  any  house  which  may  have  been  purcliased  by  them  for  the  personal 
occupation  and  habitation  of  the  siid  party  cf  tlie  first  part,  and  shall  in 
manner  aforesaid  lay  out  the  procee.'.s  of  sale  of  such  house,  and  such  other 
mor.eys  as  she  shall  direct,  in  the  purcliase  of  such  other  house  as  she  shall 
select  and  direct  tliem  to  purchase,  and  shall  permit  her  t  j  occupy  the  sam.e 
in  manner  above  set  forth  and  expressed :  and  they  shall  also,  when  directed 
by  the  said  party  cf  tlie  first  part,  sell  and  dispose  of  any  of  the  furniture 
and  other  chattels,  so  as  aforesaid,  purchased  by  them  for  her  use,  and  shall 
from  time  to  time  lay  out  and  expend  the  proceec's  of  such  sales  and  such 
other  sums  of  money  as  tliey  shall  be  directed  by  the  said  party  of  the  first 
part  to  do,  in  the  purchase  cf  such  other  furniture,  pL.te,  horses,  and 
equipages  as  she  shall  select  for  her  own  use ;  and  shall  permit  her  to  use 
and  enjoy  the  same  in  manner  aforesaid;  provided  always,  that  in  case  of 
any  attempt  by  any  person  to  seH  or  remove  the  said  furniture  or  other 
cliatlels  out  of  the  personal  care  and  custody  cf  the  party  of  the  first  part, 
without  the  consent  cf  the  trustees,  they  shall  forthwi.h  take  possession 
thereof,  and  convert  tie  chattels  so  attempted  to  be  removed  or  sold,  into 
money,  and  shall  hold  the  said  money  upon  the  trusts  and  for  the  uses  set 
forth  in  this  indenture  ;  and  in  all  the  cases  in  which  any  order  or  direction 
shall  be  given  by  the  said  party  cf  the  first  part  it  shall  be  in  writing,  and 
be  signed  by  her  in  presence  of  one  witness  at  least. 

Sixthly,  That  in  case  of  the  decease  of  the  said  trustees,  or  either  of 
them,  others  shall  be  nominated  by  the  party  of  the  first  part  (if  she  see  fit 
so  to  do),  to  be  appointed  as  trustees  in  the  place  of  the  deceased ;  and 
upon  such  nomination  being  made  and  notified  to  the  surviving  trustee,  he 
shall  forthwith,  if  such  person  be  suitable,  make  and  execute  all  such  instru- 
ments in  the  law  as  shall  be  needful  in  the  opinion  cf  counsel,  to  associate 
such  person  in  the  said  trust,  and  to  transfer  and  convey  to  him  the  same 
interest  in  the  trust  estate,  with  the  same  powers  over  the  same,  and  subject 
to  the  same  duties,  as  are  vested  in  and  assumed  by  t'le  parties  of  the  second 
part  in  and  by  this  instrument  and  the  laws  cf  the  land.  And  in  case  either 
of  the  said  trustees,  the  parties  cf  the  second  part,  or  their  successors,  shall 
vvish  to  resign  said  trust,  they  shall  be  at  liberty  to  do  so,  first  giving  reason- 
able notice  to  the  party  of  the  first  part,  that  she  may  find  some  suitable 
person,  who  shall  be  acceptable  to  the  remaining  trustee,  to  assume  the  said 
trust  in  place  of  the  trustee  resigning ;  and  the  same  proceedings  shall  then 
be  had  for  the  introduction  and  appointment  of  a  new  trustee  as  are  above 


64  MARRIED  WOMEN. 

provided  in  case  of  the  decease  of  a  trustee  ;  and  in  case  of  the  decease  or 
resignation  at  any  time  of  any  of  the  persons  wh.o  may  be  heie  ifter 
appointed  trustees,  in  manner  aforesaid,  similar  proceedings  shall  be  had  for 
supplying  the  vacancy  created  by  such  decease  or  resignation.  And  the 
trust  fund,  property,  and  estate  shall  always  be  had  and  held  by  the  persons 
so  appointed  from  time  to  time  in  trust  for  the  uses  and  purposes  set  forth 
in  this  indenture,  and  none  other.  And  all  nominations  made  as  aforesaid 
shall  be  in  writing. 

Seventhly,  That  the  purchasers  of  any  estate,  real  or  personal,  which 
may  be  sold  and  conveyed  by  the  trustees  under  this  indenture,  shall  not  be 
bound  to  see  to  the  application  of  the  purchase-money;  but  the  receipt  and 
acquittance  of  the  trustees  shall  be  a  full  and  adequate  discharge  to  such 
purchasers  for  such  purchase-money. 

Eighthly,  That  all  the  expenses  and  incidental  charges  of  the  trustees 
shall  be  deducted  from  the  income  of  the  trust  property,  as  well  as  a 
reasonable  allowance  to  the  trustees  for  their  own  services. 

Ninthly,  That  the  resignation  of  any  trustee  shall  not  be,  nor  be  pleadec' 
as,  a  bar  to  the  chancery  jurisdiction  of  the  courts  of  the  Commonwealth, 
in  case  a  report  against  such  trustee  to  the  said  court  shall  be  necessary. 

Tenthly,  That  the  trustees  under  this  indenture,  each  for  himself  and 
not  for  each  other,  shall  be  responsible  for  the  want  of  due  diligence  only  in 
the  execution  of  the  said  trusts,  and  for  their  wilful  defaults,  and  in  case  oi 
the  omission  by  the  party  of  the  first  part  to  nominate  a  successor  to  either 
of  the  parties  of  the  second  part,  or  to  any  person  appointed  instead  of  them, 
or  either  of  them  who  may  resign  or  decease,  the  surviving  or  continuing 
trustee  shall  have  power  and  authority  to  execute  all  the  trusts  herein 
specified  and  declared,  in  as  ample  manner  as  both  the  said  parties  of  the 
second  part  might  jointly  have  done. 

In  Testimony  Whereof,  The  said  and  hereto 

set  their  hands  and  seals,  the  day  and  year  first  above  written. 

{Signature!.)     (Seals.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 
{Witnesses.) 

May     i8 

Then  the  within-named  acknowledged  this  instrument  to  be 

his  free  act  and  deed  before  me. 

(Signed)  yustice  of  the  Peace. 

(5.) 

Another  Form  of  Indenture  in  Trust,  for  Property  of 
Unmarried  "Women. 

This  Indenture,  Made  and  concluded  this  day  of  ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  ,  by  and  between 

,  of  in  the  county  of  ,  single  woman,  of  the  one  part, 


MARRIED    WOMEN. 


6S 


and  of  said  the  father  of  the  said  ,  of  the  other 

part :  Witnesseth, 

Whereas  the  said  is  seized  and  possessed  in  her  own  right, 

of  the  following-described  real  estate  ; 

and  is  also  seized  and  possessed  of  a  certain  piece  of  land, 
situate  in  said  ;  with  the  buildings  thereon  standing,  and  privileges 

and  appurtenances  thereto  belonging;  the  whole  of  which  were  conveyed  by 
to  ,  by  deed  bearing  date  the  of  ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  ,  and  recorded 

in  the  Registry  of  Deeds  for  said  county,  lib.  ,  fol.  .     And 

whereas  the  said  is  possessed  of  the  following  personal  estate  : 

to  wit,  of  shares,  of  the  capital  stock,  of  the  Bank 

in  ,  and  is  also  possessed  of  the  promissory  note  of 

for  the  sum  of  dollars,  dated  and  payable  ; 

and  also  of  the  bond  of  ,  and  ,  dated  the  day  of 

,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  , 

conditioned  for  the  payment  of  dollars  and  interest.     And 

whereas  she,  the  said  ,  is  desirous  of  securing  the  said  estate, 

both  real  and  personal,  in  the  event  of  her  marriage,  to  her  sole  use  and 
benefit ;  and  for  this  purpose  it  hath  been  agreed,  that  all  the  estate  and 
property  aforesaid  shall  be  granted,  assigned,  and  transferred  unto  the  said 
,  and  to  such  other  trustee  as  shall  hereafter  be  appointed  accord- 
ing to  the  provisions  hereinafter  expressed,  to  be  held  in  trust  by  them  for 
the  separate  and  sole  use  and  benefit  of  her,  the  said  ,  and  her 

heirs  (notwithstanding  any  such  coverture),  upon  the  terms  and  conditions, 
for  the  uses,  intents,  and  purposes,  under  the  limitations,  and  for  and  during 
the  time,  as  hereinafter  is  expressed. 

Now,  this  indenture  witnesseth,  that  the  said  ,  in  consideration 

of  the  premises,  and  of  the  covenants  hereinafter  contained,  and  also  of 
one  dollar  now  paid  to  her  by  the  said  ,  the  receipt  whereof  i-.i 

hereby  acknowledged,  hath  granted,  bargained,  sold,  and  transferred,  and 
by  these  presents  doth  grant,  bargain,  sell,  and  transfer,  unto  the  said 

,  his  heirs  and  assigns,  forever,  all  the  real  and  personal  estate,  stocks, 
notes,  and  bond,  hereinbefore  described  and  specified  : 

To  have  and  to  hold  the  same  to  him,  the  said  ,  his  heirs  and 

assigns,  forever,  to  and  for  the  several  uses,  trusts,  and  purposes,  and 
subject  to  the  several  provisions,  limitations,  powers,  and  agreements, 
hereinafter  limited,  declared,  and  expressed  ;  that  is  to  say,  to  the  sole  use 
and  behoof  of  the  said  and  her  heirs,  until  the  solemnization  of. 

any  such  marriage,  and,  from  and  immediateh'  afterwards,  to  and  for  the 
following  uses,  intents,  and  purposes,  to  wit : 

That  the  said  estate,  both  real  and  personal,  stocks,  notes,   and  bond, 
shall  be  held,  by  him,  the  said  and  his  successor  in  said  trust 

in  the  manner  hereinafter  expressed  and  provided,  to  the  sole  use  and 
separate  benefit  of  her   the    said  ,  without    being   liable    to    the 

debts,  incumbrances,  or  control  of  any  husband  she  may  have  during  the 


66  MARRIED    WOMEN. 

existence  and  continuance  of  said  trust ;  that  said  shall,  from  time 

to  time,  lease  and  demise  said  real  estate  to  the  best  profit  and  advantage, 
and,  at  such  time  as  he  shall  see  fit  and  think  proper,  sell  and  dispose  of  all 
or  any  part  of  said  real  estate,  upon  the  most  advantageous  terms,  for  the 
interest  of  said  ,  and  shall  invest  the  proceeds  ;  and,  upon  pay- 

ment of  the  stocks,  notes,  or  bond  aforesaid,  invest  the  same  in  like  manner  ; 
that  he  shall  pay  all  the  rents  and  profits  of  said  real  estate,  and  the  interest 
and  income  of  said  funds,  and  also  the  interest  and  income  of  said  personal 
property  hereby  assigned,  and  all  the  net  profits  arising  and  accruing  there- 
from, as  well  as  such  portion  of  the  principal  as  he  shall  judge  necessary 
for  her  convenience  and  support,  unto  her,  the  ,  or  to  such  person 

or  persons  as  she  shall  in  writing,  without  the  signature  or  interference  of 
any  husband,  appoint,  for  and  during  the  nitural  life  of  her,  the  said 

,  that  is  to  say,  for  and  during  the  term  for  which  said  trust 

shall  continue,  according  to  the  provisions  and  limitations  hereinafter  ex- 
pressed; and,  after  the  decease  of  the  said  ,  the  remaining  income 
and  profit  unpaid,  to  the  child  or  children  of  the  said  ,  if  she  shaH 
leave  any ;  and,  upon  such  decease,  grant,  convey,  and  transfer  the  same 
estate,  both  real  and  personal,  and  any  investments  in  funds,  unto  such  child 
or  children,  his  and  their  heirs  and  assigns,  forever ;  and  also  grant  and  con~ 
>rey,  in  like  manner,  any  real  estate  which  may  be  purchased  with  the  pro- 
<;eeds  of  said  property ;  and  in  case  the  said  should  die  without 
issue,  then  to  grant,  convey,  and  transfer  the  same,  in  like  manner,  unto  the 
heirs-at-law  of  her  the  said 

And   the  said  ,  for  himself,  his  heirs,  executors,  and  adminis- 

trators, doth  covenant,  grant,  and  agree,  to  and  with  the  said  ,  her 

executors  and  administrators,  that  in  case  she,  the  said  ,  should 

desire  any  real  estate  to  be  purchased  with  any  part  of  said  capital  stock, 
funds,  or  interest,  of  the  estate  and  property  hereby  conveyed,  and  it  should 
be  deemed  advantageous  and  proper  by  the  said  to  comply  there- 

with, then  he  will  make  a  purchase  thereof,  and  take  deeds  of  conveyance 
of  such  estate  in  his  name,  as  trustee,  and  will  hold  the  same  subject  to  the 
like  trusts,  limitations,  powers,  and  agreements  as  are  herein  limited,  declared, 
and  expressed ;  and  will  pay  over  the  rents  and  income  thereof  as  is  above 
provided,  unless  she,  the  said  ,  shall  choose  to  occupy  and  hve  on 

the  same ;  and,  in  such  case,  no  rents  shall  be  exacted  or  required  of  any 
husband  of  the  said  .     And  upon  the  happening  of  the  death  of 

him,  the  said  ,  he  doth  further  covenant  that  his  heirs  or  executors 

or  administrators  shall  and  will,  as  soon  as  practicable  thereafter,  make  good 
and  sufficient  instruments  of  conveyance  to  transfer  and  grant  the  aforesaid 
estate,  both  real  and  personal,  or  such  parts  thereof  as  shall  then  remain 
undisposed  of,  and  such  as  may  be  purchased  by  him,  said  ,  in 

pursuance  of  the  trusts  and  intent  of  this  indenture,  unto  such  person  as 
shall  be  appointed  the  trustee  of  the  said  for  that  purpose  by  the 

Judge  of  Probate  for  the  District  of  for  the  time  being,  who  is,  in 

that  event,  authorized  to  make  the  appointment. 


THE  LEGAL  MEANLXG  OF  AGREEMENT. 


^7 


In  Witness  "Whereof,  The  said  parties  have   hereto  interchangeably 
set  their  hands  and  seals,  the  day  and  year  first  above  written. 

(Signattires.)     (Seals.) 
Signed,  Sealed^  and  Delivered  in  Presence  of 
(  Witness.) 

,  ss.     30th  September,  A.  D.  18 
Then  personally  appeared  the  above-named  and 

and  severally  acknowledged  this  indenture  to  be  their  free  act  and  deed. 

(Signatttrc.)         yustice  of  the  Peace. 


CHAPTER  VI. 

AGREEMENT  AND  ASSENT. 


SECTION  I. 

THE   LEGAL    MEANING   OF    AGREEMENT. 

No  contract  which  the  law  will  recognize  and  enforce  exists, 
until  the  parties  to  it  have  agreed  upon  the  same  thing,  in  the 
same  sense.  Thus,  in  a  case  where  the  defendants  by  letter 
offered  to  the  plaintiffs  a  certain  quantity  of  "good"  barley,  at 
a  certain  price.  Plaintiffs  replied:  "We  accept  your  offer, 
exjoecting  you  will  give  us  fine  barley  and  full  weight."  The 
jury  found  that  there  was  a  distinction  in  the  trade  between  the 
words  "good"  and  "fine,"  and  the  court  held  that  there  was 
not  a  sufficient  acceptance  to  sustain  an  action  for  non-delivery 
of  the  barley.  So  where  a  person  sent  an  order  to  a  merchant 
for  a  particular  quantity  of  goods  on  certain  terms  of  credit. 
and  the  merchant  sent  a  less  quantity  of  goods,  and  at  a  shorter 
credit,  and  the  goods  were  lost  by  the  way,  it  was  held  by  the 
court  that  the  merchant  must  bear  the  loss,  for  there  was  no 
sale  or  contract  between  the  parties. 

There  is  an  apparent  exception  to  this  rule,  when,  for  exam- 
ple, A  declares  that  he  was  not  understood  by  B,  or  did  not 
understand  B,  in  a  certain  transaction,  and  that  there  is  there- 
fore no  bargain  between  them ;  and  B  replies  by  showing  that 
the  language  used  on  both  sides  was  explicit  and  unequivocal, 


68  AGREEMENT  AND  ASSENT. 

and  constituted  a  distinct  contract.  Here,  B  would  prevail 
The  reason  is,  that  the  law  presumes  that  every  person  means 
that  which  he  distinctly  says.  If  A  had  offered  to  sell  B  his 
horse  for  twenty  dollars,  and  received  the  money,  and  then 
tendered  to  B  his  cow,  on  the  ground  that  he  was  thinking  only 
of  his  C01V,  and  used  the  word  Jiorsc  by  mistake,  this  would  not 
avoid  his  obligation,  unless  he  could  show  that  the  mistake  was 
known  to  B;  and  then  the  bargain  would  be  fraudulent  on  B's 
part.  This  would  be  an  extreme  case  ;  but  difficult  questions 
of  this  sort  often  arise.  If  A  had  agreed  to  sell,  and  had  actu- 
ally delivered,  a  cargo  of  shingles  at  "3.25,"  supposing  that  he 
was  to  receive  that  price  for  a  "bunch,"  which  contains  five 
hundred,  and  B  supposed  that  he  had  bought  them  at  that  price 
for  a  "thousand,"  which  view  should  prevail.''  The  answer 
would  be,  first,  that  if  there  was,  honestly  and  actually,  a 
mutual  mistake,  there  was  no  contract,  and  the  shingles  should 
be  returned.  But,  secondly,  if  a  jury  should  be  satisfied,  from 
the  words  used,  from  the  usage  prevailing  where  the  bargain 
was  made  and  known  to  the  parties,  or  from  other  circumstances 
attending  the  bargain,  that  B  knew  that  A  was  expecting  that 
price  for  a  bunch,  B  would  have  to  pay  it ;  and  if  they  were  satis- 
fied that  A  knew  that  B  supposed  himself  to  be  buying  the 
shingles  by  the  thousand,  then  A  could  not  reclaim  the 
shingles,  nor  recover  more  than  that  price.  There  was  such  a 
case  so  decided. 

In  construing  a  contract,  the  actual  and  honest  intention  of 
the  parties  is  always  regarded  as  an  important  guide.  But  it 
must  be  their  intention  as  expressed  in  the  contract. 

If  the  parties,  or  either  of  them,  show  that  a  bargain  was 
honestly  but  mistakenly  made,  which  was  materially  different 
from  that  intended  to  be  made,  it  would  be  a  good  ground  for 
declaring  that  there  was  no  contract. 

Mistakes  of  fact  in  a  contract  can  be  corrected  by  the  courts, 
but  not  mistakes  of  law;  no  man  being  permitted  to  take 
advantage  of  a  mistake  of  the  law,  cither  to  enforce  a  right,  cr 
avoid  an  obligation  ;  for  it  would  be  obviously  dangerous  and 
unwise  to  encourage  ignorance  of  the  law  by  permitting  a  party 
to  profit,  or  to  escape,  by  his  ignorance.     But  the  law  which 


U'l/A  T  IS  A  A'  ASSEA'T.  69 

one  is  required  at  his  peril  to  know,  is  the  law  of  his  own  coun- 
try. Ignorance  of  the  law  of  a  foreign  state  is  ignorance  of 
fact.  In  this  respect  the  several  States  of  the  Union  are  foreign 
to  each  other.  Hence,  money  paid  through  ignorance  or  mis- 
take of  the  law  of  another  State  may  be  recovered  back. 

Fraud  annuls  all  obligation  and  all  contracts  into  which  it 
enters,  and  the  law  relieves  the  party  defrauded.  If  both  of  the 
parties  act  fraudulently,  neither  can  take  advantage  of  the  fraud 
of  the  other;  and  if  one  acts  fraudulentlv,  he  cannot  set  his 
own  fraud  aside  for  his  own  benefit.  Thus,  if  one  gives  a 
fraudulent  bill  of  sale  of  property,  for  the  purpose  of  defraud- 
ing his  creditors,  Jie  cannot  set  that  bill  aside  and  annul  that 
sale,  although  those  who  are  injured  by  it  may. 

SECTION  II. 

WHAT    IS    AX    ASSENT  ? 

The  most  important  application  of  the  rule  stated  at  the 
beginning  of  this  chapter,  is  the  requirement  that  an  accept- 
ance of  a  proposition  must  be  a  simple  and  direct  affirmative, 
in  order  to  constitute  a  contract.  For  if  the  party  receiving 
the  proposition  or  offer  accepts  it  on  any  condition,  or  with  any 
change  of  its  terms  or  provisions  which  is  not  altogether  imma- 
terial, it  is  no  contract  until  the  party  making  the  offer  consents 
to  those  modifications. 

Therefore,  if  a  party  offers  to  buy  certain  goods  at  a  certain 
price,  and  directs  how  the  goods  shall  be  sent  to  him,  and  the 
owner  accepts  the  offer  and  sends  the  goods  as  directed,  and 
they  are  lost  on  the  way,  it  is  the  buyer's  loss,  because  the 
goods  were  his  by  the  sale,  which  was  completed  w^hen  the  offer 
was  accepted.  But  if  the  owner  accepts  the  offer,  and  in  his 
acceptance  makes  any  material  modification  of  its  terms,  and 
then  sends  the  goods,  and  they  are  lost,  it  is  his  loss  now,  because 
the  contract  of  sale  was  not  completed. 

Nor  will  a  voluntary  compliance  with  the  conditions  and 
terms  of  a  proposed  contract  always  make  it  a  contract  obliga- 
tory on  the  other  party,  unless  there  have  been  an  accession  to, 
or  an  acceptance  of,  the  proposition  itself.     In  general,  if  A 


70  AGREEMENT  AND  ASSENT. 

says  to  B,  if  you  will  do  this,  I  will  do  that ;  and  B  instantly 
does  what  was  proposed  to  him,  this  doing  so  is  an  acceptance, 
and  A  is  bound.  But  if  the  doing  of  the  thing  may  be  some- 
thing else  than  an  acceptance  of  the  offer,  or  if  the  thing  may 
be  done  for  some  other  reason  than  to  signify  an  acceptance  or 
assent,  there  must  be  express  acceptance  also,  or  there  is  no 
bargain. 

SECTION  III. 

OFFERS    MADE    ON    TIME. 

It  sometimes  happens  that  one  party  makes  another  a  cer- 
tain offer,  and  gives  him  a  certain  time  in  which  he  may  accept 
it.  The  law  on  this  subject  was  once  somewhat  uncertain,  but 
may  now  be  considered  as  settled.  It  is  this :  If  A  makes  an 
offer  to  B,  which  B  at  once  accepts,  there  is  a  bargain.  But  it 
is  not  necessary  that  the  acceptance  should  follow  the  offer 
instantaneously.  B  may  take  time  to  consider,  and  although  A 
may  expressly  withdraw  his  offer  at  any  time  before  acceptance, 
yet  if  he  does  not  do  so,  B  may  accept  within  a  reasonable 
time ;  and  if  this  is  done,  A  cannot  say :  "  I  have  changed  my 
mind."  What  is  a  reasonable  time  must  depend  upon  the  cir- 
cumstances of  each  case.  If  A  when  he  makes  the  offer  says 
to  B  that  he  may  have  a  certain  time  wherein  to  accept  it,  and 
is  paid  by  B  for  thus  giving  him  time,  he  cannot  withdraw  the 
offer;  or  if  he  withdraws  it,  for  this  breach  of  his  contract,  the 
other  party,  B,  may  have  his  action  for  damages.  If  A  is  not 
paid  for  giving  the  time,  A  may  then  withdraw  the  offer  at  once, 
or  whenever  he  pleases,  provided  B  has  not  previously  accepted 
it.  But  if  B  has  accepted  ttie  offer  before  the  time  which  was 
given  expired,  and  before  the  offer  was  withdrawn,  then  A  is 
bound,  although  he  gave  the  time  voluntarily  and  without  con- 
sideration. For  his  offer  is  to  be  regarded  as  a  continuing  offer 
during  all  the  time  given,  unless  it  be  v/ithdrawn.  A  railroad 
company  asked  for  the  terms  of  certain  land  they  thought  they 
might  wish  to  buy.  The  owner  said  in  a  letter,  they  might  have 
it  at  a  certain  price,  if  they  took  it  within  thirty  days.  After 
some  twenty-five  days  the  railroad  company  wrote  accepting  the 
offer.     The  owner  says,  No,  I  have  altered  my  mind ;  the  land 


A  BARGAIX  BY  CORRESPONDENCE. 


71 


is  worth  more ;  and  I  have  a  right  to  withdraw  my  offer,  because 
you  paid  me  nothing  for  the  time  of  thirty  days  allowed  you. 
But  the  court  held  that  he  was  bound,  because  this  was  an  offer 
continued  through  the  thirty  days,  unless  withdrawn.  They 
said  that  the  writing  when  made  was  without  consideration,  and 
did  not  therefore  form  a  contract.  It  was  then  but  an  offer  to 
contract,  and  the  party  making  the  offer  most  undoubtedly 
might  have  withdrawn  it  at  any  time  before  acceptance.  Biii: 
when  the  offer  was  accepted,  the  minds  of  the  parties  met,  and 
the  contract  was  complete,  and  no  withdrawal  could  then  be 
made. 

SECTION  IV. 

A  BARGAIX  BY  CORRESPOXDEXCE.      • 

When  a  contract  is  made  by  correspondence,  the  question 
occurs,  At  what  time,  or  by  what  act,  is  the  contract  completed  ? 
The  law  as  now  settled  in  this  country  may  be  stated  thus.  If 
A  writes  to  B  proposing  to  him  a  contract,  this  is  a  continuel 
proposition  or  offer  of  A  until  it  reaches  B,  and  for  such  time 
afterwards  as  would  give  B  a  reasonable  opportunity  of  accept- 
ing it.  It  may  be  withdrawn  by  A  at  any  time  before  acceptance; 
but  is  not  withdrawn  in  law  until  a  notice  of  withdrawal  reaches 
B.  This  is  the  important  point.  Thus  if  A,  in  Boston,  writes 
to  B,  in  New  Orleans,  offering  him  a  certain  price  for  one 
hundred  bales  of  cotton  ;  and  the  next  day  alters  his  mind,  and 
writes  to  B,  withdrawing  his  offer ;  if  the  first  letter  reaches  B 
before  the  second  reaches  him,  although  after  it  was  written  and 
mailed,  B  has  a  right  to  accept  the  offer  before  he  gets  the  letter 
withdrawing  it,  and  by  his  acceptance  he  binds  A.  But  if  B 
delays  his  acceptance  until  the  second  letter  reaches  him,  the 
offer  is  then  effectually  withdrawn.  It  is  a  sufficient  acceptance 
if  B  writes  to  A  declaring  his  acceptance,  and  puts  his  letter 
into  the  post-ofhce.  It  seems  now  quite  clear,  that  as  soon  as 
the  letter  leaves  the  post-ofifice,  or  is  beyond  the  reach  of  the 
writer,  the  acceptance  is  complete.  That  is,  on  the  5th  of  May, 
A  in  Boston  writes  to  B,  in  Xew  Orleans,  offering  to  buy  certain 
goods  there  at  a  certain  price.  On  the  8th  of  May,  A  writes 
that   he  has  altered   his   mind  and   cannot   give  so  much,  and 


72  AGREEMEXT  AND  ASSENT. 

mails  the  letter.  On  the  14th  of  May,  B  in  New  Orleans 
receives  the  first  letter,  and  the  next  day,  the  15th,  answers  it, 
saying  that  he  accepts  the  offer  and  mails  his  letter.  On  the 
17th,  he  receives  the  second  letter  of  A  withdrawing  the  offer. 
Nevertheless  the  bargain  is  complete  and  the  goods  are  sold. 
But  if  B  had  kept  his  letter  of  acceptance  by  him  until  he  had 
received  A's  letter  of  withdrawal,  he  could  not  then  have  put 
his  letter  into  the  mail  and  bound  A  by  his  acceptance. 

The  party  making  the  offer  by  letter  is  not  bound  to  use  the 
same  means  for  withdrawing  it  which  he  uses  for  making  it ; 
because  any  withdrawal,  however  made,  terminates  the  offer,  if 
only  it  reaches  the  other  party  before  his  acceptance.  Thus, 
if  A  in  the  case  just  supposed,  a  week  after  he  has  sent  his 
offer  by  letter,  telegraphs  a  withdrawal  to  B,  and  this  withdrawal 
reaches  him  before  he  accepts  the  offer,  this  withdrawal  would 
be  effectual.  So  if  he  sent  his  offer  by  letter  to  England,  in  a 
sailing  shijD,  and  a  fortnight  after  sent  a  revocation  in  a  steamer, 
or  by  telegraph,  if  this  last  arrives  before  the  first  arrived  and 
was  accepted,  it  would  be  an  effectual  revocation. 

SECTION  V. 

WHAT   EVIDEXCE   MAY    BE    RECEIVED   IN    REFERENCE   TO   A   WRITTEN 

CONTRACT. 

If  an  agreement  upon  which  a  party  relies  be  oral  only,  it 
must  be  proved  by  evidence.  But  if  the  contract  be  reduced  to 
writing,  it  proves  itself ;  and  now  no  evidence  whatever  is 
receivable  for  the  purpose  of  varying  the  contract  or  affecting 
its  obligations.  The  reasons  are  obvious.  The  law  prefers 
written  to  oral  evidence,  from  its  greater  precision  and  certainty, 
and  because  it  is  less  open  to  fraud.  And  where  parties  have 
closed  a  negotiation  and  reduced  the  result  to  writing,  it  is  pre- 
sumed that  they  have  written  all  they  intended  to  agree  to,  and 
therefore,  that  what  is  omitted  was  finally  rejected  by  them. 

But  some  evidence  may  always  be  necessary,  and  therefore 
admissible  ;  as,  evidence  of  the  identity  of  the  parties  to  the 
contract,  or  of  the  things  which  form  its  subject-matter.  Quite 
often,  neither  the  court  nor  the  jury  can  know  what  person,  or 


EVIDENCE  OF  A    WRITTEN  CONTRACT. 


n 


what  thing,  or  what  land,  a  contract  relates  to,  unless  the  parties 
agree  in  stating  this,  or  evidence  shows  it.  The  rule  on  this 
subject  is,  that,  while  no  evidence  is  receivable  to  cont^-adict  or 
vary  a  written  contract,  evidence  may  be  received  to  explain  its 
meaning,  and  show  what  the  contract  is  in  fact. 

There  are  some  obvious  inferences  from  this  rule.  The 
first  is,  that,  as  evidence  is  admissible  only  to  explain  the  con- 
tract, if  the  contract  needs  no  explanation,  that  is,  if  it  be  by 
itself  perfectly  explicit  and  unambiguous,  evidence  is  inadmissi- 
ble, because  it  is  wholly  unnecessary  unless  it  is  offered  to  vary 
the  meaning  and  force  of  the  contract,  and  that  is  not  permitted. 
Another,  following  from  this,  is,  that  if  the  evidence  purports, 
under  the  name  of  explanation,  to  give  to  the  contract  a  mean- 
ing vv'hich  its  words  do  not  fairly  bear,  this  is  not  permitted, 
because  such  evidence  would  in  fact  make  a  new  contract. 

A  frequent  use  of  oral  evidence  is  to  explain,  by  means  of 
persons  experienced  in  the  particular  subject  of  the  contract, 
the  meaning  of  technical  or  peculiar  words  and  phrases ;  and 
such  witnesses  are  called  Experts,  and  are  very  freely  admitted. 

It  may  be  remarked,  too,  that  a  written  receipt  for  money  is 
not  within  the  general  rule  as  to  written  contracts,  being  always 
open,  not  only  to  explanation,  but  even  to  contradiction,  by 
extrinsic  evidence.  And  this  is  true  of  the  receipt  part  of  any 
instrument.  If  a  written  instrument  not  only  recites  or 
acknowledges  the  receiving  of  money  or  goods,  but  contains 
also  a  contract  or  grant,  such  instrument,  as  to  the  contract  or 
grant,  is  no  more  to  be  affected  by  any  e\idence  than  if  it  con- 
tained no  receipt ;  but  as  to  the  receipt  itself,  it  may  be  varied 
or  contradicted  in  the  same  manner  as  if  the  instrument  con- 
tained nothing  else.  Thus,  if  a  deed  recites  that  it  was  made 
in  "  consideration  of  ten  thousand  dollars,  the  receipt  whereof 
is  hereby  acknowledged,"  the  grantor  may  sue  for  the  money, 
or  any  part  of  it,  and  prove  that  the  amount  was  not  paid ;  for 
this  affects  only  the  receipt  part  of  the  deed.  But  he  cannot 
say  that  the  grant  of  the  land  was  void  because  he  never  had 
his  money,  nor  that  any  agreement  the  deed  contained  was  void 
for  such  a  reason  ;  because,  if  he  proved  that  the  money  was 
not  paid  for  the  purpose  of  thus  annulling  his  grant  or  agree- 


74 


AGREEMENT  AND  ASSENT. 


ment,  he  would  be  offering  evidence  to  affect  the  otJier  part  of 
the  deed;  and  that  he  cannot  do. 

A  legal  inference  from  a  written  promise  can  no  more  be 
rebutted  by  evidence  than  if  it  were  written.  Thus,  if  A,  by 
his  note,  promises  to  pay  B  a  sum  of  money  in  sixty  days,  he 
cannot  when  called  upon  resist  the  claim  by  proving  that  B, 
when  the  note  was  made,  agreed  to  wait  ninety  days;  and  if  A 
promise  in  writing  to  pay  money,  and  no  time  is  set,  this  is  by 
force  of  law  a  promise  to  pay  on  demand,  and  e\"idence  is  not 
receivable  to  show  that  a  distant  period  was  agreed  upon. 

Generally  speaking,  all  written  instruments  are  construed 
and  interpreted  by  the  law  according  to  the  simple,  customary, 
and  natural  meaning  of  the  words  used. 

It  should  be  added,  that  when  a  contract  is  so  obscure  or 
uncertain  that  it  must  be  set  wholly  aside,  and  regarded  as  no 
contract  whatever,  it  can  have  no  force  or  effect  upon  the  rights 
or  obligations  of  the  parties,  but  all  of  these  are  the  same  as  if 
they  had  not  made  the  contract. 

SECTIOxN  VI. 

CUSTOM,    OR   USAGE. 

A  CUSTOM,  or  usage,  which  may  be  regarded  as  appropriate 
to  a  contract,  has  often  great  weight  in  reference  to  it.  This  .'t 
may  have,  first,  as  to  the  construction  or  meaning  of  its  words; 
and  next,  as  to  the  intention  or  understanding  of  the  parties. 

The  ground  and  reason  for  this  influence  of  a  custom  is  this. 
If  it  exists  so  widely  and  uniformly  among  such  persons  as 
make  the  contract,  and  for  so  long  a  lime,  that  every  one  of 
them,  must  be  considered  as  knowing  it,  and  acting  with  refer- 
ence to  it,  then  it  ought  to  have  the  same  force  as  if  both 
parties  expressly  adopted  it;  because  each  party  has  a  right  to 
think  that  the  other  acted  upon  it. 

Sometimes  this  is  carried  very  far.  In  one  English  case,  a 
man  had  agreed  to  leave  in  a  certain  rabbit  warren  ten  thousand 
rabbits,  and  the  other  party  was  permitted  to  prove  that,  by  the 
usage  of  that  trade,  a  thousand  meant  one  hundred  dozen,  or 
twelve  htuidred.     In  an  American  case,  a  man  agreed  to  pay  a 


CUSTOM,  OR  USAGE.  75 

carpenter  tweh^e  shillings  a  day  for  every  man  employed  by  him 
about  a  certain  building ;  the  carpenter  was  permitted  to  prove 
that,  by  the  usage  of  that  trade,  "a  day"  meant  ten  hours' 
work ;  and  as  his  men  had  worked  twelve  and  a  half,  he  was 
permitted  to  charge  fifteen  shillings,  or  for  one  and  one-fourth 
days'  work,  for  every  day  so  spent. 

In  these  cases  the  custom  affected  the  meaning  of  the 
words.  But  it  also  has  the  effect  of  words ;  as  if  a  merchant 
employed  a  broker  to  sell  his  ship,  and  nothing  was  said  about 
terms,  and  the  broker  did  something  about  it,  and  the  ship  was 
sold,  if  the  broker  could  prove  a  universal  and  well-established 
custom  of  that  place,  that  for  doing  what  he  did  under  the 
employment  he  was  entitled  to  full  commissions,  he  would  have 
them,  as  much  as  if  they  were  expressly  promised. 

Any  custom  will  be  regarded  by  the  court,  which  comes 
within  the  reason  of  the  rule  that  makes  a  custom  a  part  of  the 
contract.  It  comes  within  the  reason  only  when  it  is  so  far 
established,  and  so  zvcll  known  to  the  parties,  that  it  must  be 
supposed  that  their  contract  was  made  with  reference  to  it. 
For  this  purpose,  the  custom  must  be  established  and  not  casual, 
uniform  and  not  varying,  general  and  not  personal,  and  known 
to  all  the  parties.  But  the  degree  in  which  these  characteristics 
must  belong  to  the  custom  will  depend  in  each  case  upon  its 
peculiar  circumstances.  Let  us  suppose  a  contract  for  the 
making  of  an  article  which  has  not  been  made  until  within  a 
dozen  years,  and  only  by  a  dozen  persons.  Words  are  used  in 
this  contract  of  which  the  meaning  is  to  be  ascertained ;  and  it 
is  proved  that  these  words  have  been  used  and  understood  in 
reference  to  this  article,  always,  by  all  who  have  ever  made  it, 
in  one  way.  Then  this  custom  will  be  permitted  to  explain  and 
interpret  the  words  of  the  parties.  But  if  the  article  had  been 
made  a  hundred  years  or  more,  in  many  countries  and  by  multi* 
tudes  of  persons,  the  evidence  of  this  use  of  these  words  by  a 
dozen  persons  in  a  dozen  years  would  not  be  sufficient  to  give 
to  this  practice  the  force  of  custom. 

Other  facts  must  be  considered ;  as,  how  far  the  meaning 
sought  to  be  put  on  the  words  by  custom  varies  from  their 
common  meaning  in  the  dictionary,  or  from  general  use;  and 


1^ 


AGREEMENT  AND  ASSENT. 


whether  other  makers  of  the  article  use  these  words  in  various 
senses,  or  use  other  words  to  express  the  alleged  meaning. 
Because  the  main  qtiestiou  is  always  this:  Can  it  be  said  that 
both  parties  must  have  used,  or  ojight  to  have  used,  these  words 
in  this  sense,  and  that  each  party  had  good  reason  to  believe 
that  the  other  party  so  used  them?  Thus  when  the  brief  but 
violent  "  Morus  multicaulis"  (or  mulberry)  speculation  prevailed, 
a  few  years  ago,  a  man  made  a  contract  to  sell  and  deliver  a 
certain  number  of  the  trees  "a  foot  high  ;"  and  the  buyer  was  per- 
mitted to  prove  that,  by  the  usage  and  custom  of  all  who  dealt 
in  that  article,  the  length  was  measured  to  the  top  of  the  ripe 
wood  only,  rejecting  the  green  and  immature  top;  and  the 
"foot  high"  was  to  be  so  understood. 

No  custom,  however,  can  be  proved  or  permitted  to  influence 
the  construction  of  a  contract,  or  vary  the  rights  of  the  parties, 
it  the  custom  itself  be  illegal.  For  this  would  be  to  permit,  or 
even  oblige,  parties  to  break  the  law,  because  others  had 
broken  it. 

Nor  would  the  courts  sanction  a  custom  vv'hich  was  in  itself 
unreasonable  and  oppressive.  There  was  a  vessel  cast  ashore 
on  the  coast  of  Virginia,  and  the  master  sold  the  cargo  on  the 
gpot ;  and  on  trial  the  jury  found  that  he  was  authorized  to  do 
50  by  the  usage  there ;  but  the  Supreme  Court  of  Massachu- 
setts, where  the  ship  and  cargo  were  insured,  said  that  the 
usage  was  unreasonable,  and  they  would  not  allow  it.  The 
Supreme  Court  of  Pennsylvania  in  one  case  refused  to  allow  a 
usage,  as  unreasonable,  by  which  plasterers  charged  half  the 
size  of  the  windows  at  the  price  per  square  yard  agreed  on  for 
the  plastering  of  a  house. 

Lastly,  no  custom,  however  universal,  or  old,  or  known 
(unless  it  has  actually  become  a  law),  has  any  force  whatever,  if 
the  parties  see  fit  to  exclude  and  refuse  it  by  words  of  their 
contract,  or  provide  that  the  thing  which  the  custom  affects 
shall  be  done  in  a  way  different  from  the  custom.  For  a  custom 
can  never  be  set  up  against  either  the  express  agreement  or  the 
clear  intentions  of  the  .parties. 

I  will  now  give  forms  for  various  agreements  or  contracts : 


FORMS  OF  COATA'ACTS  OR  AGREEMENTS.  ;; 

FORMS  OF  CONTRACTS  OR  AGREEMENTS. 

Every  agreement  should  be  written,  and  signed  by  botli 
parties,  and  witnessed,  where  this  can  be  done ;  although  the 
law  absolutely  requires  witnesses  in  very  few  cases,  and  in  none 
ot  mere  contract.  It  is  prudent,  however,  to  have  them,  for  it 
is  a  rule  of  law,  that  things  which  cannot  be  proved  and  things 
which  do  not  exist  are  the  same  in  the  law. 

Everything  agreed  upon  should  be  written  out  distinctly, 
and  care  should  be  taken  to  say  all  that  is  meant,  and  just  what 
is  meant,  and  nothing  else ;  for  it  is  a  rvile  of  law,  that  no  oral 
testimony  shall  control  a  ivritten  agreement,  unless  fraud  can  be 
proved.     Against  fraud  nothing  stands. 

(6.) 
1.— A  G-eneral  Agreement,  sufficient  for  many  purposes. 

MUIUAL   AGREEMENT   OF    TWO. 

A.  B.  of  {place  of  residence,  and  business  or  profession),  and  C,  D.  of 
{as  before),  have  agreed  together,  at  {place),  on  {the  day  should  always  be 
7iamed),  and  do  hereby  promise  and  agree  to  and  with  each  other,  as  fol- 
lows: A.  B.,  in  consideration  of  the  promises  hereinafter  made  by  C.  D. 
{if  there  are  any  snch  promises),  and  of  {here  state  any  other  consideration 
which  A.  B.  has),  promises  and  agrees  to  and  with  C.  D.,  ^■\-AX{here  set  forth^ 
as  above   directed,  the  whole  of  what  A.  B.  undertakes  to  do.) 

And  C.  D.  in  consideration  {set  forth  consideration  and  promise  as 
before.) 

Witness  our  hands,  to  two  copies  of  this  agreement  interchangeably. 

A.  B. 
Signed  and  Interchanged  in  Presence  of  C.  D. 

,E.  F. 
G.  H. 

A  General  Agreement,  as  used  in  the  Western  States. 

Articles  of  Agresnient,  Made  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  between 

party  of  the  first  part,  and  party  of  the  second  part, 

Witnesseth,  That  the  said  party  of  the  first  part  hereby  covenants  and 
agrees,  that  if  the  party  of  the  second  part  shall  first  make  the  payments 
and  perform  the  covenants  hereinafter  mentioned  on  part  to  be  made 

and  performed,  the  said  party  of  the  first  part  will 


-S  AGREEMENT  AJVD  ASSEXT. 

And  the  said  p?.rty  of  the  second  part  liereby  covenants  and  agrees  to  pay 
to  said  pnrty  of  the  first  part  the  sum  of  dollars,  in  the  manner 

following  :  dollars  cash  in  hand  paid,  the  receipt  whereof  is 

hereby  acknowledged,  and  the  balance 

with  interest  at  the  rate  of  per  centum  per  annum,  payable 

annually.  And  in  case  of  the  failure  of  the  said  party  of  the 

second  part  to  make  either  of  the  payments,  or  perform  any  of  the  covenants 
on  part  hereby  made  and  entered  into,  this  contract  shall,  at  the 

option  of  the  party  of  the  first  part,  be  forfeited  and  determined,  and  the 
party  of  the  second  part  shall  forfeit  all  payments  made  by  on  this 

contract,  and  such  payments  shall  be  retained  by  the  said  party  of  the  first 
part  in.  full  satisfaction  and  in  liquidation  of  all  damages  by  sustained, 

and  shall  have  the  rigl.t  to 

It  is  mutually  agreed  that  all  the  covenants  and  agreements  herein 
contained  shall  extend  to  and  be  obligatory  upon  the  heirs,  executors, 
administrators  and  assigns  of  the  respective  parties. 

In  "Witness  Whereof,  The  parties  to  these  presents  have  hereunto  set 
tl^«ir  hands  and  seals,  the  day  and  year  first  above  written. 

{Signatures.)  {Seals) 

Signed,  Sealed,  atid  Delivered  in  presence  of 

(8.) 
General  Contract  for  Mechanics'  Work. 
Contract  made  this  day  of  A.  D.  i8        by  and  between 

of  of  the  first  part,  and  of 

of  the  second  part, 
Witnesseth,  That  the  party  of  the  first  part,  for  the  consideration  here- 
inafter mentioned,  covenants  and  agrees  with  the  party  of  the  second  part 
to  perform  in  a  faithful  and  workmanlike  manner  the  following  specified 
work,  viz. : 

And  in  addition  to  the  above  to  become  responsible  for  all  materials  deliv- 
ered and  receipted  for  the  work  to  be  commenced  and  to  be 
completed  and  delivered  free  from  all  mechanic  or  other  liens,  on  or  before 
the  day  of  .  And  the  party  of  the  second  part  covenants 
and  agrees  with  the  party  of  the  first  part,  in  consideration  of  the  faithful 
performance  of  the  above  specified  work,  to  pay  to  the  party  of  the  first  part 
the  sum  of                                dollars,  as  follows  : 

And  it  is  further  mutually  agreed  by  and  between  both  parties,  that  in  case  of 
disagreement  in  reference  to  the  performance  of  said  work,  all  questions  of 
disagreement  shall  be  referred  to  and  the  award  of  said  referees 

or  a  majority  of  them,  shall  be  binding  and  final  on  all  parties. 


FORMS  OF  CONTRACTS  OR  AGREEMENTS.  ;r) 

In  V/itness  "Whereof,  We  hereunto  set  our  hands  and  seals  on  the  day 

and  3'ear  first  above  written. 

(Signatures.)     {Seals.) 
Executed  in  Presence  of 

(9.) 

An  Agreement  for  Purchase  and  Sale  of  Lands,  in  Use  in 
the  Middle  States. 

Agreement,  Made  and  concluded  the  day  of  A.  D. 

i8         by  and  between  of  the  State  of  of  the  first  part, 

and  of  the  State  of  of  the  second  part, 

Whereas,  The  parly  of  the  second  part  hath  agreed  to  purchase  from 
the  party  of  the  first  part,  either  on  liis  own  account  or  for  whom  it  may  con- 
cern, certain  land  in  Township,  County,  and  State  of 

And  it  is  agreed  that  the  party  of  the  second  part  shall  have  the  right  to 
divide  and  subdivide  said  land  in  such  manner,  and  appropriate  to  his  owa 
use  so  much  thereof  as  he  may  see  fit,  giving  and  paying  to  the  party  of  the 
first  part  the  sum  of  dollars,  on  or  before  the  day 

of  A.  D.  i8         ,  and  reserving  to  his  own  use  any  amount  for 

wliich  the  whole  or  any  be  sold  over  the  said 
dollars. 

And  these  Articles  further  Witness,  That  the  party  of  the  first  part, 
for  and  in  consideration  of  the  premises  and  the  sum  of 
lawful  money,  to  him  paid  by  the  party  of  the  second  part,  at  and  before  the 
execution  hereof,  doth  covenant,  promise,  grant,  and  agree,  with  the  party 
of  the  second  part,  his  heirs  and  assigns,  upon  sale  of  said  lands  being 
made  by  the  party  of  the  first  part,  to  sufficiently  grant,  convey,  and  assure 
said  lands,  with  the  appurtenances,  to  the  said  party  of  the  second  part,  or 
such  person  or  persons  as  he  may  direct;  and  in  default  of  the  said  party 
of  the  second  part  paying  the  amount  hereinbefore  specified  at  the  time 
mentioned,  then  these  articles  are  to  be  deemed  and  considered  canceled  to 
all  intents  and  purposes,  the  same  as  though  they  never  had  been  made. 

In  Witness  Whereof,  The  parties  hereto  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  aforesaid. 

(Signatures^      {Seals.) 

Sealed  and  Delivered  in  Presence  of 

(10.) 

An  Agreement  for  Sale  of  Land,  in  Use  in  the  Western 

States. 

Articles  of  Agreement,  Made  this  day  of  in  the 

year  one  thousand  eight  hundred  and  between 

of  the  first  part,  and  of  the  second  part, 


8o  AGREEMENT  AND  ASSENT. 

■Witnesseth,  That  the  party  of  the  first  part,  at  the  request  of  the  party 
of  the  second  part,  and  a  consideration  of  the  money  to  be  paid,  and  the 
covenants  as  herein  expressed  to  be  performed  by  the  party  of  the  second 
part  (the  prompt  performance  of  which  payments  and  covenants  being  a 
condition  precedent,  and  time  being  of  the  essence  of  said  condition),  hereby 
agree     to  sell  to  the  said  party  of  the  second  part,  all  certain  lot 

and  parcel     of  land,  situate  in  County  of  and  State  of 

,  known  and  designated  as  follows,  viz. : 

with  the  privileges  and  appurtenances  thereto  belonging. 

And  the  said  party  of  the  second  part,  in  consideration  of  the  premises, 
hereby  a'j,rees  to  pay  the  party  of  the  first  part,  his  or  their  executors, 
administrators,  or  assigns,  in  days, 

the  sum  of  dollars, 

as  follows,  viz. : 

with  interest  at  the  rate  of  per  cent,  per  annum  from  to 

be  paid  semi-annually  in  each  year,  on  the  whole  sum  from  time  to  time 
remaining  unpaid.  And  also  that  he  will  well  and  faithfully,  in  due  season, 
pay,  or  cause  to  be  paid,  all  ordinary  taxes  assessed  for  revenue  purposes 
upon  said  premises,  or  any  part  thereof,  subsequent  to  the  year  i8  .  And 
also  all  other  assessments  which  now  are,  or  may  be  hereafter,  charged  o^ 
assessed  %;pon  or  against  said  premises,  or  any  part  thereof.  But  in  case 
the  said  party  of  the  second  part  fail  to  pay  any  or  all  such  taxes  or  assess- 
ments upons'".''!  premises  or  appurtenances,  or  any  part  thereof,  whenever  and 
as  soon  as  the  same  shall  become  due  and  payable  ;  and  the  party  of  the  first 
part  shall  pay  irom  time  to  time,  or  at  any  time,  any  or  all  such  taxes  o\ 
assessments,  or  cause  the  same  to  be  paid,  the  amount  of  any  and  all  such 
payments  so  made  by  the  party  of  the  first  part,  with  interest  thereon  from 
the  date  of  payment,  shall  immediately  thereupon  become  an  additional  con- 
sideration, and  payment  thereof  shall  be  made  by  the  party  of  the  second 
part  hereto,  for  the  premises  herein  agreed  to  be  conveyed. 

And  the  said  party  of  the  first  part  further  covenants  and  agrees  with 
the  said  party  of  the  second  part,  that  upon  the  faithful  performance  by  said 
party  of  the  second  part  of  undertaking  in  his  behalf,  and  of  the  payment 
of  principal  and  interest  of  the  sum  above-mentioned,  in  the  manner  speci- 
fied, he  the  said  party  of  the  first  part,  shall  and  will,  without  delay,  well 
and  faithfully  execute,  acknowledge,  and  deliver  in  person,  or  by  attorney 
duly  authorized,  to  the  party  of  the  second   part,  heirs  or  assigns,  a 

deed  of  conveyance  of  all  the  right,  title,  and  interest  of  the  party  of  the 
first  part,  of,  in  and  to  the  above  described  premises,  with  the  appurtenances, 
with  full  covenants  of  warranty,  also  of  waiver  and  release  of  all  rights  of 
the  said  party  of  the  first  part,  resulting  from  the  laws  of  this  State  pertain- 
ing to  the  exemption  of  homesteads. 

And  it  is  Mutually  Covenanted  and  Agreed,  by  and  between  the  par- 
ties hereto,  that  in  case  default  shall  be  made  in  the  payments  of  principal 


FORMS  OF  COXTKACTS  OR  AGRFEMEXTS.  8 1 

or  interest  at  the  time  cr  any  cf  the  times  above  specified  for  the  payment 
thereof,  and  for  days  thereafter,  this  agreement,  and  all  the  preced- 

ing provisions  hereof,  shall  be  null  and  void,  and  no  longer  binding,  at  th* 
option  of  said  party  of  the  first  part,  representatives  or  assigns  ;  and 

all  the  payments  which  shall  then  have  been  made  thereon,  or  in  pursuance 
hereof,  absolutely  and  forever  forfeited  to  the  said  party  of  the  first  part ;  or  at 
the  election  of  the  said  party  of  the  first  part,  representatives  and  assigns, 
the  covenants  and  liability  of  said  party  of  the  second  part  shall  continue 
and  remain  obligatory  upon  the  said  party  of  the  second  part,  and  may  be 
enforced,  and  the  said  consideration-money,  and  every  part  thereof,  with  th>a 
annual  interest  as  above  specified,  be  collected  by  proper  proceedings  in  law 
or  equity,  from  the  said  party  of  the  second  part,  heirs,  executors, 

administrators,  or  assigns. 

And  it  is  Tiirtiier  Mutually  Covenanted  and  Agreod,  by  and  between 
the  parties  hereto,  that  in  case  of  defr.ult  in  the  payment  stipulated  to  be 
made  by  the  said  party  cf  the  second  part,  or  any  part  t'.iereof,  and  the  elec- 
tion of  the  party  of  the  first  part,  representatives  or  assigns,  to 
consider  the  foregoing  contract  of  sale  at  an  end,  and  prior  payments  for- 
feited, the  said  party  of  the  second  part,  lieirs,  representatives  or 
assigns,  who  may  have  possession,  or  the  right  of  possession,  of  said  prem- 
ises at  the  time  of  such  default,  or  at  any  time  thereafter,  shall  be  consid- 
ered, and  are  hereby  agreed  and  declared  to  be,  ia  law  and  equity,  the  tenant 
or  tenants  at  will  of  said  party  of  the  first  part,  representatives 
and  assigns,  on  a  rent  equal  to  an  interest  of  ten  per  cent,  per  annum  on  tlie 
whole  sum  of  the  purchase-money  above  specified,  payable  quarter-yearly 
in  advance  from  the  day  of  such  default  in  payment  of  principal  or  interest. 
And  after  such  default  in  payment,  and  ekction  to  consider  the  above  con- 
tract of  sale  as  void,  the  said  party  of  the  first  part,  representatives 
and  assigns,  shall  and  may  have  and  exercise  all  the  pow-ers,  rights,  and 
remedies  provided  by  law  or  equity  to  collect  such  rent,  or  to  remove  such 
tenant  or  tenants,  the  same  as  if  the  relation  of  landlord  and  tenant,  hereb  ^ 
declared,  were  created  by  an  original  absolute  lease  for  that  purpose,  on  \ 
special  rent,  payable  quarterly  on  a  tenure  at  will.  And  that  in  such  case 
the  said  tenant  or  tenants  shall  and  will  pay,  or  cause  to  be  paid,  all  ta.xes, 
assessments,  ordinary  and  extraordinary,  which  may  be  laid  or  assessed  on 
such  premises  or  any  part  thereof,  during  the  continuance  of  such  tenancy ; 
and  will  not  permit  or  suffer  any  waste  or  damage  to  said  premises  or  the 
appurtenances,  but  will  keep  and  deliver  up,  on  the  termination  of  such  ten- 
ancy, the  said  premises  and  appurtenances,  in  as  good  order  and  repailf 
(ordinary  wear  and  decay,  and  unavoidable  injury  by  the  elements,  excepted) 
as  they  were  in  at  the  commencement  of  said  tenancy. 

In  Witness  "Whereof,  The  party  of  the  first  part  and 

the  party  of  the  second  part,  in  own  proper  person,  have  hereunto 

respectively  set  their  hands  and  seals  on  the  day  and  vear  first  above  written. 

{Signatures.)     {Seals.) 
Signed^  Sealed,  and  Delivered  in  Presence  of 


82  -  AGREEMENT  AND  ASSEa\T. 

(11.) 
An  Agreement  for  "Warranty  Deed  Used  in  the  "Western 

States. 
Articles  of  Agreement,  made  this  day  of  in  the  yeav 

of  our  Lord  one  thousand  eight  hundred  and  between 

party  of  the  first  part,  and  party  of  the  second  part, 

Witnesseth,  That  said  party  of  the  first  part  hereby  covenants  and 
agrees,  that  if  the  party  of  the  second  part  shall  first  make  the  payment  and 
perform  the  covenants  hereinafter  mentioned  on  part  to  be  made  and 

performed,  the  said  party  of  the  first  part  will  convey  and  assure  to  the  party 
of  the  second  part,  in  fee  simple,  clear  of  all  incumbrances  whatever,  by  a 
good  and  sufficient  warranty  deed,  the  following  lot,  piece,  or  parcel  of 
ground,  viz.  : 

And  the  said,  party  of  the  second  part  hereby  covenants  and  agrees  to  pay 
to  said  party  of  the  first  part,  the  sum  of  dollars,  in  the  manner 

following:  dollars,  cash  in  hand  paid,  the  receipt  whereof  is  hereby 

acknowledged,  and  the  balance 

with  interest  at  the  rate  of  per  centum  per  annum,  payable 

annually,  on  the  whole  sum  remaining  from  time  to  time  unpairl,  and  to  pay 
all  taxes,  assessments,  or  impositions  that  may  be  legally  levied  or  imposed 
upon  said  land,  subsequent  to  the  year  iS  .  And  in  case  of  the  failure 
of  the  said  party  of  the  second  part  to  make  either  of  the  payments,  or  per- 
form any  of  the  covenants  on  part  hereby  made  and  entered  into,  this 
contract  shall,  at  the  option  of  the  party  of  the  first  part,  be  forfeited  and 
determined,  and  the  party  of  the  second  part  shall  forfeit  all  payments  made 
by  on  this  contract,  and  such  payments  shall  be  retained  by  the  said 
party  of  the  first  part  in  full  satisfaction  and  in  liquidation  of  all  damages  by 
sustained,  and  shall  have  the  right  to  re-enter  and  take 
possession  of  the  premises  aforesaid. 

It  is  mutually  agreed  that  all  the  covenants  and  agreements  herein  con- 
tained shall  extend  to  and  be  obligatory  upon  the  heirs,  executors,  adminis- 
trators and  assigns  of   the  respective  parties. 

In  Witness  Whereof,  The  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  abov^e  written. 

{SignatJires.)     {Seals.) 
Signed,  Sealed,  and  Delivered  itt  Presence  of 

(12.) 
A  Contract  to  convey  Real  Estate,  in  Use  in  the  Middle     - 

States. 
This  Article  of  Agreement,  Made  and  entered  into  the 
day  of  one  thousand  eight  hundred  and  between 

of  the  first  part,  and 
of  the  second  part, 


I^O/^AfS  OF  CONTRACTS  OR  AGREEMENTS.  83 

Witnesseth,  as  follows  :  The  said  party  of  the  first  part  hereby  ao^'ces 
to  sell  unto  the  said  party  of  t!ie  second  pr.rt  all  that  parcel  of  land  situated, 
bounded,  and  described  as  follows.     That  is  to  say 

for  the  sum  of 

to  be  paid  by  the  said  party  of  the  second  pnrt,  in  manner  and  at  the  times 
hereinafter  mentioned  and  covenanted,  on  the  part  of  the  said  jDarty  of  the 
second  part :     And  the  said  party  of  the  first  part  further  agrees,  that  on  tlie 
day  of  on  receiving  from  the  said  prirty  of  the  second  part 

the  sum  of 

the  said  party  of  the  first  part  shall  and  will,  at 

at  o\vn  proper  cost  and  expense,  execute  and  deliver  to  the  said 

party  of  the  second  part,  or  to  assigns,  a  proper  deed  of  conveyance, 

duly  acknowledged,  for  the  convej-ing  and  assuring  to  them  the  fee 

simple  of  the  said  premises,  free  from  all  incumbrances, 

which  deed  of  convej-ance  shall  contain  a  general  warrant}-,  and  the  usual 
full  covenants. 

And  the  said  party  of  the  second  part  hereby  agrees  to  purchase  of  the 
said  party  of  the  first  part  the  premises  above  mentioned,  at  and  for  the 
price  and  sum  above  mentioned,  and  to  pay  to  the  said  party  of  the  first 
part  the  purchase-money  therefor,  in  manner  and  at  the  times  following, 
to  wit : 

And  it  is  further  agreed  by  and  between  the  parties  to  these  presents, 
that  the  said  party  of  the  first  part  shall  have  and  retain  the  possession  of 
said  premises,  and  be  entitled  to  the  rents  and  profits  thereof 

until  the  day  of  when  full  possession  of  the 

same  shall  be  delivered  to  the  said  party  of  the  second  part,  by  the  said 
party  of  the  fir.st  part : 

And  it  is  understood  and  agreed,  that  the  stipulations  aforesaid  are  to 
apply  to  and  bind  the  heirs,  executors,  administrators,  and  assigns  of  the 
respective  parties. 

And  it  is  further  hereby  agreed,  that  in  case  the  said  party  of  the  first 
part  shall  fail  or  refuse  to  execute  and  deliver  a  proper  deed  of  conveyance 
in  manner  and  at  the  time  and  place  above  specified  for  that  purpose,  provided 
the  party  of  the  second  part  shall  be  ready  to  fulfill  and  perform  the  cove- 
nants then  to  be  fulfilled  on  part ;  or  in  case  the  said  party  of  the 
second  part  shall  fail  or  refuse  to  pay  the  said  sum  of 

at  the  time  and  place  as  above  agreed  upon,  provided  the  party  of  the  first 
part  shall  be  ready  to  deliver  such  deed  of  convevance,  as  aforesaid  ;  then 
the  party  so  failing  shall  and  will  pay  to  the  other  party,  or  assigns, 

the  sum  of  dollars,  which  sum  is  hereby  declared,  fixed,  and  agreed 


84  A  GREEMENT  A  ND  A  SSENT. 

upon,  as  the  liquidated  amount  of  dam:iges  to  be  paid  by  the  party  so  failing 
as  aforesaid,  for  non-performance. 

{Signainres.)     {Seals.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

(13.) 
An  Agreement  for  the  Purchase" of  an  Estate,  in  Use  in  New- 
England. 
Articles  of  Agreement,  Had,  made,  concluded,  and  agreed  upon  tliis 

day  of  A.D.  between  of  of  the  one 

part,   and  of  of  the  other  part.     First,   the  said  {seller)  in 

consideration  of  the  sum  of  to  him  paid  by  the  said     {buyer)  at  or 

before  the  sealing  and  delivery  of  these  presents,  and  of  the  further  sum  of 

to  be  paid  as  hereinafter  is  mentioned,  doth  hereby  for  himself,  his 
heirs,  executors,  and  administrators,  and  every  of  them,  covenant,  promise, 
and  agree,  to  and  with  the  said  his  heirs,  executors,  and  adminis- 

trators, and  every  of  them,  by  these  presents,  that  he  the  said  his 

heirs  and  assigns  (and  all  and  every  other  person  and  persons  whatsoever, 
claiming  or  to  claim  any  right,  title,  or  interest  under  him,  or  any  other 
person  or  persons  whatsoever,  of,  in,  or  to  the  lands 

and  premises  hereinafter  mentioned)  shall  and  wiU,  at  the  proper  costs  and 
charges  of  the  said  his  heirs  an:l  assigns  (except  fees  to 

counsel),  on  or  before  the  day  of  next  ensuing,  by  such  con- 

veyances, assurances,  ways  and  means  in  the  law,  as  he  the  said 

his  heirs  and  assigns,  or  his  or  their  counsel,  shall  reasonably 
devise,  advise,  or  require,  well  and  sufficiently  grant,  sell,  release,  convey, 
and  assure  to  the  said  and  his  heirs,  or  to  whom  he  or  they  shall 

appoint  or  direct,  all  that  situate  now  in  the  tenure  or  occupation 

of  or  his  assigns,  with  covenants  to  be  therein  contained,  that  the 

said  premises,  at  the  time  of  such  conveyance,  ara  free  from  all  incunv. 
brances  and  demands  whatsoever  (except  •  )  and  all  oLher  usual  an  ( 
reasonable  covenants.     In  co:isiJeration  whereof,  the  said  for  himseli, 

his  heirs,  executors,  administrators,  and  assigns,  doth  hereby  covenant, 
promise,  and  agree,  to  and  with  the  said  his  heirs,  executors,  and 

administrators,  by  these^presents,  that  he  the  said  his  heirs,  execul.ors, 

or  administrators,  or  some  of  them,  shall  and  will,  well  and  tru'y,  pay,  or 
cause  to  be  paid,  unto  the  said  his  heirs,  executors,  or  administrators, 

the  aforesaid  sum  of  at  the  time  of  executing  the  said  conveyances. 

And  for  the  true  performance  of  all  and  every  the  covenants  and  agreements 
aforesaid,  each  of  the  said  parties  to  these  presents  doth  hereby  bind 
himself,  his  heirs,  executors,  and  admini-tritors  to  the  other  of  them,  his 
heirs,  executors,  administrators,  and  assigns  in  the  penal  sum  of 

In  "Witness  Whereof,  The  said  parties  to  these  presents  have  here- 
ur.to  set  their  hands  and  seals  the  day  and  year  first  above  written. 

{SigJiattires.)     {Seals.) 
Signed,  Sealed,  and  Deli7<ered  in  Presence  of 


FORMS  OF  COiXTRACTS  OR  AGREEMEXTS.  85 

An  agreement  for  the  sale  of  lands  should  alwa)^s  state  the 
covenants,  whether  of  general  or  special  warranty,  which  it 
is  intended  that  the  contemplated  conveyance  shall  contain. 

Covenants,  Provisos,  and  Agreements,  which  may  be 
Inserted  in  the  Preceding  Form. 

1.  Covenant  that  the  vendor,  before  the  purchase  is  completed,  shall  not 
commit  waste,  or  grant  any  new  leases. 

And  also  that  the  said  {the  seller)  shall  not  nor  will,  in  the  mean 

time,  cut  down  any  timber  or  trees,  or  commit  any  waste  or  spoil  whatsoever, 
in  or  upon  the  premises,  or  any  part  thereof,  nor  shall  or  will  grant  any  new 
leases  of  the  premises,  or  any  part  thereof,  without  the  privity  or  consent  of 
the  said  {the  bjiyer)  or  his  heirs  or  assigns. 

2.  A7iother  covenatit for  the  pay7ne}it  of  the purchase-tnoney. 

And  the  said  {the  buyer)  doth  hereby  covenant  and  agree  to  and  with 
'ue  said  {the  seller)  his  heirs,  executors,  and  administrators,  that  upon 
sealing  and  executing  such  conveyance  and  assurance  of  the  said  unto 

him  and  them  as  aforesaid,  according  to  the  true  intent  of  these  presents, 
he  the  said  his  heirs,  executors,  or  administrators,  shall  and  will  pay, 

or  cause  to  be  paid,  unto  the  said  his  heirs,  executors,  or  adminis- 

trators, the  said  sum  of  in  full  for  the  purchase  of  the  said  premises. 

{Or  there  may  be  an  agreement  to  retain  part  of  the  piircJiasc-moiiey  to  pay 
ojf  an  incumbrance,  as  follows  : 

And  it  is  agreed  between  the  said  parties  that  the  said  sha]l  or 

may  retain  out  of  the  said  purchase-money  the  sum  of  for  the  purpose 

of  paying  off  the   sum  of  secured  by  a  mortgage  on  the  said 

premises,  given  by  the  said  to  bearing  date 

•vhen  the  said  sum  shall  become  due  by  virtue  of  the  said  mortgage. 

3.  This  agreement  tnay  be  inserted : 

And  it  is  agreed,  that  if  the  counsel  of  the  said  shall  not  approve 

of  the  title  of  the  said  to  the  said  premises,  this  agreement  shall  be 

void. 

4.  This  proviso  jnay  be  inserted: 

Provided  always,  and  it  is  hereby  mutually  covenanted  and  agreed,  by  and 
between  the  parties  to  these  presents,  for  themselves  and  their  respective 
heirs,  in  manner  as  follows,  viz  :  That  in  case  the  counsel  of  the  said 
[the  buyer)  shall  not  approve  of  the  title  of  him  the  said     ( the  seller)  to  the 
said  or  in  case         {the  buyer)  on  his  view  thereof  (he  not  having  ever 

viewed  the  same)  will  not  proceed  in  the  purchase  thereof,  and  shall  and  do, 
within  one  month  next  after  the  date  hereof,  give  notice,  in  writing,  to  the 
sa;d  (or  to  of  )  that  he  will  not  purchase  the 

said  then  and  in  either  of  the  cases,  these  presents  shall  be  absolutely 


S6  AGREEMENT  AAD  ASSEA'T. 

void  ;  and  that  then  he  the  said  {tlie  seller)  his  heirs,    executors,    or 

administrators,  shall  and  will,  within  six  months  now  next  ensuing,  well  and 
truly  repay,  or  cause  to  be  repaid  unto  the  said  ( the  buyer)  his  heirs, 
executors,  administrators,  or  assigns,  the  said  sum  of  so  by  him  now 

paid  as  aforesaid,  together  with  legal  interest  for  the  same,  from  henceforth 
to  be  computed  until  payment  thereof. 

5.  A  proinsion  in  articles  of  ptirchase,  in  case  of  the  delay  or  dcfa71.lt  of 
either  party. 

that  if  by  reason  of  any  delay,  neglect,  or  default,  by  or  on  the 
part  of  the  said  {the purchaser)  or  his  heirs,  or  his  or  their  counsel 

or  agents,  the  said  conveyances  of  the  said  estates  and  premises  shall  not 
be  ready  and  tendered  to  the  said  {the  veiidoj-)  or  his  heirs,  to  be 

executed,  on  or  before  the  said  day  of  then  and  in  such 

case,  the  saia  his  shall  and  will  pay  and  allow  to  the  said 

his  interest  for  the  said  sum  of  at  the  rate  of 

to  be  computed  from  the  day  of  until  the  said  (the 

principal  sum)  shall  be  paid  as  aforesaid  ;  but  if,  by  reason  of  any  delay, 
neglect  or  default,  by  or  on  the  part  of  the  said  or  any  claiming 

under  him,  such  conveyances  as  aforesaid  shall  not  be  executed  on  or 
before  the  said  day  of  then  and  in  such  case,  no  such 

interest  as  aforesaid  shall  be  paid  or  allowed  during  the  time  of  such  delay 
of  the  said 

6.  Ati  agreemetit  that  if  a  good  title,  &^c.,  cannot  be  made  on,  &^c.,  the 
premises  shall  stand  as  security  for  the  7noney  paid  down,  &^c. 

It  is  hereby  further  agreed  and  declared  by  and  between  ail  the  said 
parties  to  these  presents,  and  particularly  the  said  (tlie  zettdors)  do  hereby 
agree  and  declare,  that  in  case  they  cannot  make  cut  a  good  title  to,  and 
execute  and  perfect  such  conveyances  and  assurances  of  the  premises  ss 
aforesaid  on  or  before  the  day  of  now  next  ensuing,  theq 

the  said  and  every  part  thereof,  shall  remain  and  be  a  security  to 

the  said  {the purchaser)  for  securing  to  him,  his  the  repay- 

ment of  the  said  sum  of  now  by  him  paid  as  aforesaid,  at  or  upon 

the  said  day  of  now  next  ensuing,  together  with  interest 

for  the  same  after  the  rate  of  from  henceforth  in  the  meantime  and 

until  payment  thereof,  which  interest  in  such  case  they  the  said 
{the  purchasers)  do  hereby  for  themselves,  severally  and  respectively,  and  fcr 
their  several  and  respective  heirs,  promise  and  agree  to  pay  accord- 

ingly, and  then,  also,  in  such  case  all  such  rents,  as  he  the  said 

{the  purchaser)  shall  have  received,  by  or  out  of  the  premises  as  aforesaid, 
shall  be  deemed  and  allowed  by  him  in  part  of  payment  of  the  same 
{the principal purchase-fnoney)  and  interest. 

7.  That  if  the  other  parties  do  Jiot  perform  their  covenants,  the  purchaser 
shall  not  be  obliged  to  perform  his. 

And  it  is  mutually  agreed  and  declared  to  be  the  true  intent  and  meaning 


FORMS  OF  CONTRACTS  OR  ACREEMEXTS.  Sy 

jf  these  presents,  that  if  it  shall  happen  that  any  of  them  the  said 
their  heirs,  sha'l  neglect  to  perform  his  or  their  parts  of   the 

covenants  and  agreements  herein  contained,  that  then,  and  in  any  such  case, 
the  said  his  licirs,  executors,  and  administrators,  or  any  of  then:, 

shall  not  be  hereby  obl'ged  to  perform  his  and  their  covenants  herein 
contained,  or  any  of  them,  but  shall,  if  he  shall  think  fit,  be  absolutely 
discharged  from  the  same. 

(14.) 

Agreement  for  the  Sale  of  an  Estate  by  Private  Contract, 

Articles  of  Agreement,   Made  this  day  of 

between  of  and  of  . 

The  said  agrees  to  sell  the  said  all  that  with  the 

appurtenances,  for  the  sum  of  and  will,  on  cr  before  the  day  of 

next,  on  the  receipt  of  the  said  sum  of  at  the  charges  of 

the  said  execute  a  proper  conveyance  thereof,  with  a  covenant  of 

general  warranty  and  against  incumbrances,  to  the  said  and  his 

heirs  and  assigns. 

And  the  said  ac:rees,  that,  on  the  execution  of  such  conveyance, 

he  will  pay  the  said  sum  of  to  the  said  cr  his  assigns. 

And  it  is  further  agreed,  that  the  conveyance  shall  be  prepared  by  and  at 
the  expense  of  the  said  to  the  approbation  of  the  respective 

counsel  of  the  said  and  and  that  all  taxes  and  outgoing < 

in  respect  of  the  premises  in  the  meantime  shall  be  paid  by  the  said 
And  it  is  agreed,  that  the  said  shall  receive  the  rents  and  profit ?-. 

of  the  premises,  from  next,  to  his  proper  use.     And  it  is  agreed, 

that  if  the  said  conveyance  shall  not  be  executed,  and  the  purchase-money 
paid  on  or  before  the  day  of  then  the  said 

shall  pay  interest  for  the  same  from  the  same  dav,  unto  the  said 
after  the  rate  of  per  ce7it.  per  atuitiiii. 

In  Witness  "Whereof, 

(Signaiicrcs)         (Seals!) 

(15.)     . 

An  Agreement  to  be  signed  by  an  Auctioneer,  after  a  Cale 

by  Auction. 

I  Hereby  Acknowledge,  That  has  been  this  day  declared 

the  highest  bidder  and  purchaser  of  {describe  the  real  estate)  at  the  sum  of 

;  and  that  he  has  paid  into  my  hands  the  sum  of  as  a 

deposit,  and  in  part  payment  of  the  purchase-money  ;  and  I  hereby  agree 
that  the  vendor  shall  in  all  respects  fulfil  the  conditions  of  sale.* 
Witness  my  hand, 

{Signatures.)         {Seals.) 

*  It  would  be  well  to  have  the  conditions  of  sale  annexed,  and  refer  to  them  by  saying  here- 
unto annexed. 


S8  A  GREEMENT  A ND  A  SSENT. 

(10.) 

An  Agreement  to  be  signed  by  the  Purchaser,  after  a  Sale 

by  Auction. 

I  Hereby  Acknowledge,  That  I  have  this  day  purchased  by  public  aac- 
tion  all  that  {describe  the  estate)  for  the  sum  of  ;  and  have  paid 

into  the  hands  of  the  sum  of  as  a  deposit  and  in 

part  payment  of  the  said  purchase-money;  and  I  hereby  agree  to  pay  the 
remaining  sum  of  unto  {the  vetidor)  at  on  or 

before  the  day  of  ;  and  in  all  other  respects,  on  my 

part,  to  fulfil  the  annexed  conditions  of  sale. 

Witness  my  hand  this  day  of 

{SignatJires.)        (Seals.) 

(17.) 

An  Agreement  to  make  an  Assignment  of  a  Lease. 

"Whereas,         {the  lessor)  hath  by  his  deed  indented,  dated  , 

demised  unto  the  said  {the  lessee)  all  that  to  have  and  to 

hold  to  him  the  said  his  {reciting  the  lease)  as  by  the 

said  deed  indented  more  fully  appears  :  Now  the  said  for  and  in 

consideration  of  dollars,  doth  hereby  for  himself,     {his  heirs,  S^c.) 

<:uvenant,  that  he  the  said  before  the  day  of 

shall  and  will,  at  the  costs  and  charges  of  {the  assignee), 

liis     {heirs,  &^c.)  by  deed  indented,  assure,  assign,  and  grant  over  to  the  said 
his     {his  heirs,  Gr'c.)  the  said     {the  premises)  and  all  his  estate, 
vight,  title,  and  demand  therein  :  To  have  and  to  hold  to  the  said  {/he 

assignee)  his  {heirs,  &^c.)  during  the  residue  of  the  said  term  of  years,  then 
to  come,  of,  in,  and  to  the  same,  by  virtue  of  the  said  recited  indenture,  and 
under  the  rents,  covenants,  and  agreements  therein  specified. 

{Signatures!)         {Seals.) 

(18.) 

An   Agreement   for  making  a  Quantity  of  Manufactured 

Articles. 

Articles  of  Agreement,  between  {the  buye?-)  of  the 

one  part,  and  of  the  other  part. 

The  said  {the  mante/acturer)  for  the  consideration  hereinafter 

mentioned,  doth  covenant  that  he  will,  at  his  own  charge,  make  for  the  said 

{describe  the  articles  to  be  made) 
of  the  same  quality  of  materials  and  goodness,  as,  and  in  all  other  respects 
according  to  a  pattern  agreed  between  the  said  parties,  ,  and 

deliver  the  same  to  the  said  at  within 

months  from  the  date  hereof.     And  the  said  in  consideration 

thereof,  doth  covenant  to  pay  to  the  said  at  the  rate  of 


FORMS  OF  CONTRACTS  OR  AGREEMFNTS.  89 

after  months  from  the  delivery  of  the  said  as  aforesaid. 

And  it  is  agreed,  that  if  any  of  the  said  shall  not  be  macle 

agreeable  to  the  said  pattern,  and  for  that  reason  shall  be  rejected  by  the 
said  he  the  said  shall  take  back  such  as  shall 

so  be  refused,  and  deliver  the  said  the  like  quantity  of  the 

goodness  and  make,  according  to  the  pattern  aforesaid. 

In  Witness 

{Signatures.)        {Seals.) 

(19.) 
Agreement  bet'ween  a  Trader  and  a  Book-keeper. 

Articles  of  Agreement  between  {the  trader)  of 

and         {the  book-keeper)  of  .     The  said  agrees  that  he 

will,  during  the  term  of  years  from  the  date  hereof,  dwell  with  the 

said  and  faithfully  keep  the  books  of  accounts  of  the  said 

nnd  diligently  serve  the  said  in  such  other  business  as  the  said 

shall  direct,  and  shall  therein  perform  the  reasonable 
('irections  of  the  said  without  disclosing  the  same,  or  any  of  his 

(orrespondence,  or  the  secrets  of  his  employment  or  business  to  any  person 
Avhatsoever ;  and  shall  not  correspond  with  any  person  corresponding  with 
t\ie  said  ,  nor  use  any  traffic  or  dealing  for  himself,  or  any  other 

person,  without  the  consent  of  the  said  in  writing.     And  the 

Slid  further  covenants,  that  he  will,  during  the  said  term,  keep 

t\-ue  and  perfect  accounts  for  the  said  ,  and  will  not  embezzle, 

waste  or  destroy  any  of  the  goods,  moneys,  or  effects  of  the  said 
or  any  of  his  correspondents  ;  and  also  that  he  the  said  -        will, 

from  time  to  time,  during  the  said  term,  upon  request,  make  and  give  unto 
the  said  his  a  just  and  perfect  account  in  writing 

of  all  money,  which  he  the  said  shall  receive  and  pav  out,  and 

of  aU  goods  and  commodities,  Mnich  he  shall,  at  anv  time  during  the  said 
term,  receive  in  or  deliver  out  upon  the  account  of  the  said  ,  or 

any  of  his  correspondents,  or  by  the  order  of  t'.^e  said  .     And  also, 

that  he  the  said  his  will  pay  to  the  said  , 

his  all  such  sums  of  money  as  shall  be  due  upon  the  foot  of  every 

such  account.     And  also  that  he  the  said  will  not  deliver  forth 

upon  credit  any  of  the  goods,  merchandise,  or  moneys,  of  the  said 
or  any  of  his  correspondents,  to  any  person  or  persons  whatsoever,  without 
tlie  express  consent  of  tlie  said 

And  the  said  {the  trader)  for  himself  {and  his  heirs,  &^c.) 

covenants  that  he  will  pay  to  the  said  {the  book-keeper)  in  considera- 

tion of  the  said  services,  the  yearly  sum  of  in  equal  payments 

on  the  days  following,  viz.,  on  and  will,  during  the  said  term, 

provide  for  the  said  sufficient  and  suitable  meat,  drink,  washing, 

and  lodging. 

In  Witness 

(Signatures.)         {Seals) 


go  AGREEMENT  AND  ASSENT. 

(20.) 
Agreement  for  Damages  in  laying  out  or  altering  Road. 

Whereas,  A  road  was  laid  out  on  tlie  day  of  A.D.  i8      , 

by  and  Commissioners  of  Higliways  of  the  Town 

of  in  the  County  of  and  State  of  on  the  application  of 

the  requisite  number  of  legal   voters  residing  within  three   miles  of  said 
road,  as  follows,  commencing 

wliich  road  passes  through  the  land  of  being  known  and 

described  as  follows,  viz. : 

Now,  therefore,  it  is  hereby  agreed  between  the  said  Commissioners  and 
the  said  that  the  damages  sustained  by  the  said  by  reason  of 

the  laying  out  and  opening  said  road  upon  his  land,  hereinbefore  described, 
be  liquidated  and  agreed  upon  at  dollars. 

In  Witness  Whereof,  The  said  Commissioners  and  the  said 
have  hereunto  subscribed  their  names  this  day  of  A.  D.  i8      . 

{Signatures.)  Commissioners  of  Higliways. 

(21.) 

A.n  Agreement  between  a  Person  who  is  Retiring  from  the 
Active  Part  of  a  Business,  and  another  who  is  to  Conduct 
the  same  for  their  Mutual  Benefit. 

Articles  of  Agreement,  Made,  entered  into,  and  concluded  upon,  this 
r  day  of  A.  D.  ,  between 

of  of  the  one  part,  and  of  of  the 

other  part :  Whereas  the  said  hath  conducted  and  managed  for 

some  time  past  the  trade  or  business  of  the  said  ,  and  in  consid' 

eration  of  the  attention  and  assiduity  of  the  said  thereunto,  tl:e 

said  is  willing  to  continue  the  said  in  the  mai;\- 

agement  thereof  under  the  covenants,  restrictions,  and  agreements  herein- 
after contained  ;  and  in  consequence  thereof,  an  inventory  and  appraisement 
hath  been  made  and  taken  of  the  stock,  and  entered  in  two  receipt-books,  one 
of  which  is  to  remain  in  the  custody  of  each  of  them,  the  said  parties  to  these 
presents,  and  is  subscribed  by  both  of  them,  and  the  value  of  the  said  stock 
in  the  whole,  appears  to  the  amount  of  the  sum  of  :  Now  these 

presents  witness,  that  for  and  in  consideration  of  the  covenants  and  agree- 
ments hereinafter  contained  on  the  part  of  the  said  to  be 
performed,  the  said  for  himself,  his  executors,  and  admin- 
istrators, doth  hereby  covenant,  promise,  and  agree,  to  and  with  the  said 
,  that  it  shall  and  may  be  lawful  to  and  for  the  said 
from  time  to  time,  during  the  term  of  years,  to  be 
computed  from  the  day  of  the  date  of  these  presents,  if  they  the  said 
and                      shall  jointly  so  long  live,  to  trade  with  the  said  stock,  and  to 


FORMS  OF  CONTRACTS  OR  AGREEMENTS. 


91 


manage  and  improve  the  same,  in  such  manner  as  to  the  said 
under  the  direction  of  the  said  ,  shall  seem  meet,  upon  trust 

nevertheless,  and  to  the  intent  and  purpose  that  the  said  shall  and  do, 

by  and  out  of  the  money  which  shall  arise  by  sale  of  any  part  or  parts  of  the 
said  stock,  buy  such  goods  as  shall  be  requisite  to  keep  up  and  continue  the 
present  c|uality  and  value  thereof,  and  by  and  out  of  the  profits  which  shall 
arise  from  the  trade  and  dealing,  in  the  first  place  yearly  and  every  year,  pay 
the  whole  rent  of  the  said  house  and  shop,  and  jDay  and  discharge  all  taxes 
which  now  are,  or  shall  hereafter  be,  assessed  or  imposed  on  him  the  said 

or  the  said  on  account  of  the  said  house 

and  trade,  and  in  the  next  place  to  pay  to  him  the  said  or 

his  assigns,  yearly  and  every  year  during  the  said  term  of  years,  if 

they  the  said  and  shall  so  long  live,  one 

clear  annuity  or  yearly  sum  of  b)'  equal  half-yearly  payments, 

on  the  day  of  and  the 

day  of  without  any  deduction  or  abatement  whatsoever,  and 

subject  thereto,  to  retain  the  residue  and  overplus  of  the  profits  which  shall 
arise  from  his  trade  and  dealing,  to  and  for  his  own  sole  use  and  benefit,  as 
a  recompense  and  satisfaction  for  his  care  and  trouble  in  the  sale  and  man- 
agement of  the  said  stock.  And  the  said  in  consideration 
of  the  premises,  and  of  the  covenant  and  agreement  hereinbefore  on  the  part 
of  the  said  contained,  doth  for  himself,  his  executors,  and 
administrators,  covenant,  declare,  and  agree,  that  he  the  said 
shall  and  will  from  time  to  time,  and  at  all  times,  for  and  during  the  said 
term  of  years,  if  they  the  said  and 
shall  so  long  jointly  live,  diligently  apply  himself  to  the  care  and  managft 
ment  of  the  said  stock,  trade,  and  business,  according  to  his  best  skill, 
abilities,  and  discretion,  and  apply  and  dispose  of  the  money  which  shall 
arise  from  the  sale  thereof,  and  all  the  profits  of  his  trade  and  dealings,  lo 
answer  and  discharge  the  trusts  hereby  reposed  in  him,  in  such  manner  ii<. 
hereinbefore  is  directed,  declared,  or  expressed.  And  also  sha'U  and  will 
write  true  and  perfect  entries,  in  proper  books  of  accounts,  of  all  such  goods 
as  shall  be  sold,  and  of  all  moneys  which  shall  be  paid  and  received  by  him, 
and  permit  the  same,  from  time  to  time,  to  be  inspected  by  him  the  said 

or  such  other  person  or  persons  as  he  shall  appoint.     And 
further,  that  he  the  said  shall  not  nor  will,  at  any  time  during 

the  continuance  of  the  said  term  of  years,  buy  or  sell,  or  in  anywise 

trade  or  deal  in  his  own  name,  but  in  the  name  only  of  him  the  said 
upon  the  trusts  aforesaid;  nor  do  any  act  whatsoever,    whereby  the  said 
stock,  or  any  part  thereof,  may  be  attached,  or  taken  in  execution.     And  also 
that  at  Christmas  next,  and  so  at  every  succeeding  Christmas  during  the 
said  term  of  years,  or  oftener,  if  thereto  required  by  the  said  , 

he  the  said  shall  and  will  take  a  full  account  in  writing  of 

the  said  stock,  then  remaining  in  the  said  trade,  and  of  the  profits  thereof, 
and  deliver  the  same  to  the  said  in  order  to  manifest  to  him  a 


92 


AGEEEMENT  AND  ASSENT. 


true  state  thereof,  and  of  his  proceedings  in  the  trade  by  him  carried  on 
therewith.  And  at  the  expiration,  or  other  sooner  determination,  of  the  said 
term  of  years,  he  the  said  ,  his  executors  or  admin- 

istrators, shall  and  will  deliver  up  to  him  the  said  ,  his 

executors  or  administrators,  the  stock  tlien  remaining  for  his  or  their  own 
use  and  benefit,  to  the  value  of  the  sum  of  losses  by  bad 

debts,  decay  of  goods,  and  other  inevitable  casualties  excepted. 

Witness  our  hands  and  seals,  this  day  of 

in  the  year  iS     . 

In  presence  of 

{Signatures)    {Seals.) 

(22.) 
A  Brief  Building  Contract. 
Contract  for  building  made  this  day  of  one  thousand 

•light  hundred  and  by  and  between  of  in  the 

*  ounty  of  and  of  in  the  County  of 

Builder     . 
The  said  covenant  and  agrees  to  and  with  the  said 

t\:i  make,  erect,  build,  and  finish,  in  a  good,  substantial,  and  workmanlike 
manner,  upon  situate  said 

to  be  built  agreeable  to  the  draught,  plans,  explanations,  or  specifications, 
furnished,  or  to  be  furnished  to  said  by  of  good  and 

substantial  materials ;  and  to  be  finished  complete  on  or  before  the 
day  of  .     And  said  covenant  and  agrees  to  pay  to  said 

for  the  same  dollars  as  follows  : 

Security  against  mechanics',  or  other  lien,  is  to  be  furnished  by  said 
prior  to  payment  by  said 

And  for  the  performance  of  all  and  every  the  articles  and  agreements 
above  mentioned,  the  said  and  do  hereby  bind  themselves, 

their  heirs,  executors,  and  administrators,  each  to  the  other,  in  the  penal  sun* 
of  dollars,  firmly  by  these  presents. 

In  Witness  Whereof,  We,  the  said  and  have  hereunto 

set  our  hands  the  day  and  year  first  above  written. 

{Signatures.)     {Seals.) 
Executed  and  Delivered  in  P7-esence  of 

Contracts  for  building  are  among  those  most  frequently- 
made,  and  also  among  those  which  require  the  utmost  care.  A 
specification  stating  and  describing  all  the  things  which  the 
parties  desire  and  intend  to  have  done  shall  always  accompany 
the  contract ;  and  it  is  very  difficult  for  persons  not  accustomed  to 
the  work  to  remember  and  specify,  and  properly  describe,  all  the 


FORMS  OF  COXTRACTS  OR  ACREEMEXTS. 


93 


things  they  propose  to  have  in  the  building ;  and  all  these  things 
should  be  accurately  and  precisely  stated  in  the  specification. 
From  omissions  or  errors  of  this  kind,  cases  and  questions  are 
constantly  arising.  To  assist  those  who  have  to  prepare  for 
themselves  or  others  a  contract  of  this  sort,  I  have  given,  first, 
a  brief  and  simple  form  ;  I  now  give  a  x^ry  full  and  minute  form, 
prepared  by  a  skillful  lawyer,  and  in  wide  use. 


(23.) 
A  Full  and  Minute  Building  Contract. 

An  Agreement,  of  two  parts,  made  this  day  of  in  the  year 

one  thousand  eight  hundred  and  by  and  between 

part     of  the  first  part,  and  part     of  the  second  part. 

The  said  part  of  the  first  part,  in  consideration  of  the  sum  of  money  to 
be  paid  by  the  said  part  of  the  second  part,  as  hereinafter  mentioned,  and 
the  covenants  and  agreements  hereinafter  recited,  to  be  kept  and  performed 
by  the  said  part     of  the  second  part,  do  for  sel 

and  Covenant,  Promise,  and  Agree,  to  and  with  the  said  part 

of  the  second  part,  that  the  said  part     of  the 

first  part,  shall  and  will,  in  a  good  and  workmanlike  manner,  and  according 
to  the  best  of  art  and  ability,  do  and  perform  the  following  work, 

and  provide  materials  for  the  same,  that  is  to  say : 

The  whole  of  said  work  is  to  be  performed,  and  all  the  said  materials 
furnished  in  conformity  with  the  plans  and  specifications  of  the  same,  ?r, 
made  by  the  Architect      herebv 

appointed  by  said  part  of  the  second  part,  which  plans  and  specifications 
bear  even  date  herewith,  and  are  signed  by  the  parties  hereto,  and  under 
the  superintendence  and  direction  of  hereb)*  appointed 

Superintendent  and  Agent  of  the  said  part  of  the  second  part, 
which  plans  and  specifications  are  to  be  considered  as  forming  a  part  of  this 
agreement,  as  if  herein  fully  written  and  drawn. 

The  said  part  of  the  first  part  further  agree  that  the  work  aforesaid 
shall  be  commenced  and  be  constantly  prosecuted,  and  the  materials  afore- 
said promptly  furnished  and  that  all  said  work  shall  be 
completed  on  or  before  the  day  of  in  the  year  one  thousand 
eight  hundred  and  and,  furthermore,  that  no  charge  of  any 
kind  shall  be  made  by  the  said  part  of  the  first  part  to  the  said  part  of 
the  second  part,  beyond  the  sum  of  dollars,  unless  the  said  part 
of  the  second  part,  and  the  said  Superintendents,  shall  alter  the  aforesaid 
plans  and  specifications,  in  which  case  the  value  of  such  alterations  shall  be 


94  •  AGREEMENT  AND  ASSENT. 

added  to  the  amount  to  be  paid  under  this  contract,  or  deducted  therefrom, 
as  the  case  may  require  :  it  being  expressly  understood  that  no  extra  work 
of  any  kind  shall  be  performed,  or  extra  materials  furnished,  Ijy  the  said 
part     of  the  first  part,  unless  authorized  by  the  said  part  of  the  second 

part,  and  the  said  Superintendents  in  writing;  and  that  the  said  part  of 
the  second  part,  and  the  said  Superintendents  may,  from  time  to  time, 
make  any  alterations  of,  to,  and  in  the  said  plans  and  specifications,  upon 
the  terms  aforesaid. 

The  said  part  of  the  first  p?.rt,  for  sel  and  legal  representa- 
tives, farther  promise  and  agree  that  insurance  shall  be  effected  upon 
the  building  as  soon  as  the  rocf  is  put  on  and  covered;  the  amount  of  said 
insurance  to  be  for  such  sum  as  tlie  said  part  of  the  second  part,  and 
the  said  Superintendents  shall  direct,  to  be  further  increased,  from  time  to 
time,  at  the  direction  of  the  said  party  of  the  second  part,  and  the  said 
Superintendents  ;  the  policy  to  be  in  the  name  and  for  the  benefit  of  said 
part  of  the  second  part,  or  legal  representatives,  and  to  be  made 

payable,  in  case  of  loss,  to  for  whom  it  may  concern  ; — each 

party  to  this  agreement  hereby  agreeing  to  pay  one-half  the  cost  of  such 
insurance. 

The  said  part         of  the  second  part,  for         sel         and         legal  repre- 
sentatives, in  consideration  of  the   materials  being  provided  and  the  labor 
done  as  herein  required,  and  all  other  of  the  stipulations,  requirements,  mat- 
ters and  things  herein  set  forth,  being  kept  and  performed  by  said  part 
of  the  first  part,  Covenant,  Promise,  and  Agree,  to  and  with  the  said  pnrt 
of  the  first  part:  that         will  well  and  truly  pay,  or  cause  to  be 

paid,  unto  the  said  part  of  the  first  part,  or  legal  representatives,  the 
sum  of  dollars,  in  the  manner  following: — 

It  is  agreed  by  and  between  the  parties  to  this  agreement,  as  follows  : — 

1st.  That  for  each  and  every  day's  delay  in  the  performance  and  com- 
pletion of  this  agreement,  or  of  any  extra  work  under  it,  after  the  said 
day  of  in  the  year  one  thousand  eight  hundred  and  ,  t!',ere  shall 

be  allowed  and  paid  by  said  part  of  the  first  part,  to  said  part  of  the 
second  part,  or  representatives,  damages    for  such  delay  if  the  same 

shall  arise  from  any  act  or  default  on  the  part  of  the  said  part  of  tb.e 

first  part. 

2d.  That  the  said  part        of  the  first  part,  or  representatives,  shall 

not  be  delayed  in  the  constant  progress  of  the  work  under  this  agreement, 
or  any  of  the  extra  work  under  the  same  or  connected  therew-ith,  by  said 
party  of  the  second  part,  or  by  his  Superintendents  or  any  other  contractor 
employed  by  the  said  part  of  the  second  part,  upon  or  about  the  prem- 
ises ;  and  for  each  and  every  day,  if  any,  shall  be  so  delaj'ed, 
additional  day  to  be  allowed  to  complete  the  work  aforesaid,  from 
and  after  the  day  hereinbefore  appointed  for  its  entire  comple'ion,  unless 
upon  the  contingency  provided  for  below  in  the  5th  article. 

3d.  That  each  and  every  person  employed,  by  sub-contract  or  "  piece 


FORMS  OF  COA'TRACTS  OR  AGREEMENTS.-  95 

work,"  by  the  said  part  of  the  first  part,  in  the  providing  materials  or 
performin"-  labor  or  works  in  the  fultillment  or  execution  of  this  agreement, 
shall  be,  in  the  opinion  of  the  said  Superintendents,  a  suitable,  competent,  and 
satisfactory  person. 

4th.  That  the  said  part  of  the  first  part  shall  and  will  engage  and 

provide  own  cost  and  expense,  during  the  progress  of  the  works  under, 

and  until  the  completion  and  fulfillment  of  this  agreement,  a  thoroughly 
competent  "  Foreman  of  the  Works,''  whose  duty  it  shall  be  to  attend  to  the 
general  supervision  of  all  matters  hereby  undertaken  by  said  part  of  the 
first  part,  and  also  to  the  correct  and  exact  making,  preparing,  laying-out, 
and  locating  of  all  patterns,  moulds,  models,  and  measurements  in,  to,  for, 
and  upon  the  works  hereby  agreed  upon,  from  and  in  conformity  with  the 
said  plans  and  specifications,  and  according  to  the  direction  of  said 
Architects. 

5th.  That  if  at  any  time  during  the  progress  of  the  work  the  said  Super- 
i.itendents  shall  find  that  said  work  is  not  carried  forward  with  sufficient 
rapidity  and  thoroughness,  or  that  the  materials  furnished,  foreman  of  the 
viorks,  sub-contractors   nr  workmen  employed  by  the  part  of  the  first 

pirt,  are  unsatisfactor}-.  and  insufficient  for  the  completion  of  the  work 
within  the  time  and  in  the  manner  stipulated  in  the  plans  and  specifications 
aforesaid,  shall  give  notice  of  such  insufficiency  and  defects  in  pro- 

gress, materials,  foreman,  sub-contractors,  or  workmen,  to  the  party  of  the 
first  part ;  and  if  within  three  days  thereinafter  such  insufficiency  and 
defects  are  not  remedied  in  a  manner  satisfactory  to  — the  party  of  ihe 

second  part,  tlirough  the  agency  of  said  Superintendents,  or  otherwise,  rr.ay 
enter  upon  the  work,  and  suspend  or  discharge  said  party  of  the  first  part- 
and  all  employed  under  him,  and  carry  on  and  complete  the  work„by  "days 
work,"  or  otherwise,  as  may  elect,  providing  and  substituting  proper 

and  sufficient  materials  and  workmen  ;  and  the  expense  thereof  shall  be 
chargeable  to  the  said  party  of  the  first  part,  and  be  deducted  from  any  sum 
which  may  be  due  to  him  on  a  final  settlement ;  and  the  opinion  of  said 
Superintendents  shall  be  final,  and  their  certificate  in  writing  conclusive  evi- 
dence between  the  parties  hereto,  on  all  questions  and  issues  arising  on  or 
out  of  this  fifth  article  of  this  Agreement,  subject  to  the  final  decision  of  the 
referees  hereinafter  named. 

6th.  That  the  said  part  of  the  first 'part  shall  be  solely  responsible 
for  any  injury  or  damage  sustained  by  any  and  all  person  or  persons,  or 
property,  during  or  subsequent  to  the  progress  and  completion  of  the  works 
hereby  agreed  upon,  from  or  by  any  act  or  default  of  the  said  part  of  the 
first  part ;  and  shall  be  responsible  over  the  party  of  the  second  part  for  all 
costs  and  damages  which  said  party  of  the  second  part  may  legally  incur  by 
reason  of  such  injury  or  damage  ;  and  that  the  said  part  of  the  first  part 
shall  give  all  usual,  requisite,  and  suitable  notices  to  all  parties  whose  estates 
or  premises,  being  adjoining  those  upon  which  the  works  hereby  agreed  upon 
are  to  be  done,  may  or  shall  be  any  way  interested  in  or  affected  by  the  per» 
formance  of  said  works. 


96 


AGREEMENT  AND  ASSENT. 


7;h.  That  the  said  part  of  the  first  part  shall,  from  time  to   time, 

during  tlie  progress  of  said  works,  apply  to  the  said  Arcliitects  for  rdl  need- 
ful explanations  of  the  true  intent  and  meaning  of  the  said  plans  and  speci- 
fications ;  and  that  "working-plans"  shall,  at  the  expense  of  the  said  part 
of  the  second  part,  be  from  time  to  time,  and  whenever  requisite,  furnished 
by  the  said  Architects  to  the  said  part  of  the  first  part,  upon  reasonable 
notice  being  given  to  the  said  Architects  that  the  same  are  requisite  and 
needful ;  and  further,  that  the  said  part  of  the  first  part  will  not  and  shall 
not,  in  tlie  execution,  performance,  and  fulfillment  of  this  agreement,  in  any 
way  deviate  from  the  entire  and  exact  compliar.ce  wi.h,  adherence  to,  and 
fulfillment  of  the  said  plans,  "working-plans,"  and  specifications,  by  reason 
of  any  practical  difficulty  which,  in  opinion,  mayor  shall  arise  or  occur; 

unless  some  such  deviation  shall,  in  the  opinion  and  by  the  certificate  of  the 
said  Architects,  become  absolutely  necessary  and  unavoidable,  in  which  case 
said  part  of  the  first  part  to  make  such  deviation  as  they  may  be 

directed  by  said  Architects. 

And  Whereas  it  is  the  intention  of  the  parties  hereto,  that  the  said 
part  of  the  first  part  shall  bear  and  pay  all  the  expenses  necessary  for 
and  incident  to  the  carrying  into  full  and  entire  execution  and  completion  all 
the  works  contemplated  in  this  agreement,  it  is  further  understood  and 
agreed  by  and  between  the  parties  to  this  agreement,  that  in  case  any  lien 
or  liens  for  labor  or  materials  shall  exist  upon  the  property  or  estate  of  the 
said  part  of  the  second  part,  at  the  time  or  times  when  by  the  foregoing 
terms  or  provisions  of  this  agreement  a  payment  is  to  be  made  by  the  said 
part  of  the  second  part  to  the  said  part  of  the  first  part,  such  pay- 
ment, or  such  part  thereof  as  shall  be  equal  to  not  less  than  double  the 
amount  foj  which  such  lien  or  liens  shall  or  can  exist,  shall  not  be  payable  at 
the  said  stipulated  time  or  times,  notwithstanding  anything  to  the  contraiy 
in  this  agreement  contained;  and  that  the  said  pnrt  of  the  second  past 
may  and  shall  be  well  assured  that  no  such  liens  do  or  can  attach  or  exi.^t 
before         shall  be  liable  to  make  either  of  the  said  payments. 

It  is  expressly  understood  by  the  part  of  the  first  part,  that  all  th;- 
works  described  or  referred  to  in  the  annexed  specifications  are  to  be  exe- 
cuted by  the  said  part  of  the  first  part,  whether  or  not  the  said  worxs 
are  illustrated  by  the  aforesaid  plans  or  working-drawings  ;  and  that  said 
part  of  the  first  part  to  execute  all  works  shown  by  the  aforesaid  plans 
and  working-drawings,  whether  or  not  said  works  are  described  or  referred 
to  in  the  said  specifications. 

If  any  apparent  discrepancy  shall  be  found  to  exist  between  the  plans 
working-drawings,  and  the  specifications,  the  decision  as  to  the  fair  construc- 
tion of  said  discrepancy,  and  of  the  true  intent  and  meaning  of  the  plans, 
working-drawings,  and  specifications,  shall  be  made  by  the  Architects  here- 
inbefore named  ;  and  said  part  of  the  first  part  shall  provide  and  execute 
the  said  works  in  accordance  with  said  decision, — with  the  right  of  a  final 
decision  by  the  referees  hereinafter  named, — as  a  part  of  the  original  works 
undertaken  by  said  part         of  the  first  part. 


THE  NEED  OF  A   CONSIDERA  TION. 


97 


And  Further  agreed  by  the  parties  hereto  to  submit,  and  hereby  do 
subniit.  each,  all,  and  every  demand  between  them  hereinafter  arising,  if  any, 
concerning  the  value  of  any  changes  of,  or  omissions  in,  or  additions  to,  the 
aforementioned  plans  or  specifications,  or  concerning  the  manner  of  per- 
forming or  completing  the  work,  or  the  time  or  amount  of  any  payment  to 
be  made  under  this  agreement,  or  the  quantity  or  quality  of  the  labor  or 
materials,  or  both,  to  be  done,  furnished,  or  provided  under  this  agreement* 
or  any  other  cause  or  matter  touching  the  work,  the  materials,  or  the  dam- 
ages contemplated,  set  forth,  or  referred  to,  in  or  by  this  agreement,  or 
concerning  the  construction  of  this  agreement,  to  the  determination  of 

the  award  of  whom,  or  the  award  of  a  majority  of  whom 
being  mjde  and  reported  within  year  from  the  time  herein- 

before fixed  upon  for  the  final  completion  of  this  agreement,  to  the  Superioi 
Court  for  the  County  of  ,  the  judgment  thereof  shall  be  final  ; 

and  if  either  of  the  parties  shall  neglect  to  appear  before  the  Arbitrator  , 
after  due  notice  given  of  the  time  and  place  appointed  for  hearing  the 
parties,  the  Arbitrator     may  proceed  in  absence. 

In  "Witness  "Whereof,   The  parties  aforesaid  have  interchangeably  set 
their  hands  and  seals  the  day  and  year  first  above  written,  to  this  and 
other  instrument     of  like  tenor  and  date. 


Executed  and  Delivered  in  Presence  of 


{Signatures.)     (Seals.) 


CHAPTER  VIL 

CONSIDERATION. 


SECTION  I. 

THE   NEED    OF   A    CONSIDERATION. 

It  is  an  ancient  and  well-established  rule  of  the  common  law 
prevailing  in  this  country,  that  no  promise  can  be  enforced  at 
law  unless  it  rests  upon  a  consideration ;  by  which  word  is 
meant  a  cause  or  reason  for  the  promise.  If  it  do  not,  it  is 
called  a  naked  bargain,  and  the  promisor,  even  if  he  admits  his 
promise,  is  under  no  legal  obligation  to  perform  a  promise  that 
he  made  without  a  consideration. 

There  are  two  exceptions  to  this  rule.  One  is  when  the 
promise  is  made  by  a  sealed  instrument,  or  deed  (every  written 
instrument  which  is  sealed  is  a  deed).  Here  the  law  is  said  to 
imply  a  consideration;  the  meaning  of  which  is  that  it  does  not 
require   that   any  consideration   should   be  proved.     The    seal 


98 


CO.VSIDERA  TIOX. 


itself  is  said  to  be  a  consideration,  or  to  import  a  considera 
tion. 

The  second  exception  relates  to  negotiable  paper  ;  and  is  an 
instance  in  which  the  law-merchant  has  materially  qualified  the 
common  law.  We  shall  speak  more  fully  of  this  exception  when 
we  treat  of  negotiable  paper. 

The  word  "  consideration,"  as  it  is  used  in  this  rule,  has  a 
peculiar  and  technical  meaning.  It  denotes  some  substantial 
cause  for  the  promise.  This  cause  must  be  one  of  two  things  ; 
either  a  benefit  to  the  promisor,  or  else  an  injury  or  loss  to  the 
promisee  sustained  by  him  at  the  instance  and  request  of  the 
promisor.  Thus,  if  A  promises  B  to  pay  him  a  thousand  dollars 
iji  three  months,  and  even  promises  this  in  writing,  the  promise 
is  worthless  in  law,  if  A  makes  it  as  a  merely  voluntary  prom- 
ise, without  a  consideration.  But  if  B,  or  anybody  for  him, 
gives  to  A  to-day  a  thousand  dollars  in  goods  or  money,  and 
this  was  the  ground  and  cause  of  the  promise,  then  it  is  enforce 
able.  And  if  A  got  nothing  for  his  promise,  but  B,  at  the 
request  of  A,  gave  the  same  goods  or  money  to  C,  this  would 
be  an  equally  good  consideration,  and  the  promise  to  pay  B 
would  be  equally  valid  in  law. 

This  requirement  of  a  consideration  sometimes  operates 
harshly  and  unjustly,  and  permits  promisors  to  break  their  word 
under  circumstances  calling  strongly  for  its  fulfilment.  Courts 
have  been  led,  perhaps,  by  this,  to  say  that  the  consideration  is 
sufficient  if  it  be  a  substantial  one,  although  it  be  not  an  ade- 
quate one.  This  is  the  unquestionable  rule  now,  and  it  is  some- 
times carried  very  far.  In  one  case  an  American  court  refused 
to  inquire  into  the  adequacy  of  the  consideration, — or  whether 
it  was  equal  to  the  promise  wade  upon  it, — and  said,  if  there 
was  the  smallest  spark  of  consideration,  it  was  enough,  if  the 
contract  was  fairly  made  with  a  full  understanding  of  all  the 
material  facts.     Still,  there  must  be  some  consideration. 

SECTION  II. 

WHAT   IS    A    SUFFICIENT   CONSIDERATION. 

The  law  detests  litigation  ;  at  least  courts  say  so  ;  and  there- 
fore they  consider  anything  a  sufficient  consideration  which 


A  SUFFICIENT  COXSIDERA  TION.  ^q 

arrests  and  suspends  or  terminates  litigation.  Thus  the  com 
promise,  or  forbearance,  or  mutual  reference  to  arbitration,,  or 
any  similar  settlem.ent,  of  a  suit,  or  of  a  claim,  is  a  good  con 
sideration  for  a  promise  founded  upon  it.  And  it  is  no  defenscj 
to  a  suit  on  this  promise,  to  show  that  the  claim  or  suit  th.'s 
disposed  of  would  probably  have  been  found  to  have  no  founda- 
tion or  substance.  If  there  be  an  honest  claim,  which  he  who 
advances  it  believes  to  be  well  grounded,  and  which  within  a 
rational  possibility  may  be  so,  this  is  enough  ;  the  court  will  not 
go  on  and  try  the  validity  of  the  claim  or  of  the  suit  in  order  to 
test  the  validity  of  a  promise  which  rests  upon  its  settlement ; 
for  the  very  purpose  for  which  it  favors  this  settlement  is  the 
avoidance  of  all  necessity  of  investigating  the  claim  by  litiga- 
tion. But  for  reasons  of  public  policy,  no  promise  can  be 
enforced  of  which  the  consideration  was  the  discontinuance  of 
criminal  proceedings  ;  or  any  conduct  by  which  public  interests 
are  harmed,  as,  for  example,  the  procurement  of  the  passage  of  a 
law  by  corrupt  means. 

If  any  work  or  service  is  rendered  to  one,  or  for  one,  and  he 
requested  the  same,  it  is  a  good  consideration  for  a  promise  of 
payment ;  and  if  he  makes  no  promise,  the  law  will  imply  the 
promise,  that  is,  will  suppose  that  he  has  made  it,  and  will  not 
permit  him  to  deny  it.  The  rule  is  the  same  as  to  payment 
for  goods,  Oi"  property  of  any  kind,  delivered  to  any  one  at  his 
request. 

No  person  can  make  another  his  debtor  against  that  other's 
will,  by  a  voluntary  offer  of  work,  or  service,  or  money,  or 
goods.  But  if  that  other  accept  what  is  thus  offered,  and  retain 
the  benefit  of  it,  the  law  will,  generally,  imply  or  presume  that 
it  was  offered  at  the  request  of  that  other  party,  and  will  also 
imply  his  promise  to  pay  for  it,  and  wall  enforce  the  promise  ; 
unless  it  is  apparent,  or  is  shown,  that  it  was  offered  and  received 
as  a  mere  gift. 

A  promise  is  a  good  consideration  for  a  promise  ;  and  it  is 
one  which  frequently  occurs  in  fact. 

If  A  says  to  B,  "  If  you  will  deliver  goods  to  C,  I  will  pav 
for  them,"  although  there  is  no  obligation  upon  B  to  deliver  the 


I  oo  CONSIDER  A  TION. 

goods,  if  he  does  deliver  them,  he  furnishes  a  consideration  for 
the  agreement,  and  may  enforce  it  against  A. 

An  agreement  by  two  or  more  jDarties  to  refer  disputes  or 
claims  between  them  to  arbitration,  is  not  binding  upon  any  of 
the  parties  unless  all  have  entered  into  it. 

The  principle,  that  a  promise  is  a  good  consideration  for  a. 
promise,  has  been  sometimes  applied  to  subscription-papers  ; 
all  who  sign  them  being  held  on  the  ground  that  the  promise  of 
each  is  a  good  consideration  for  the  promises  of  the  rest.  The 
law  on  the  subject  of  these  subscription-joapers,  and  of  all  vol- 
untary promises  of  contribution,  is  substantially  this  :  no  such 
promises  are  binding,  unless  something  is  paid  for  them,  or 
unless  some  party  for  whose  benefit  they  are  made, — and  this 
party  may  be  one  or  more  of  the  subscribers, — at  the  request, 
express  or  implied,  of  the  promisor,  and  on  the  faith  of  the  sub 
scriptions,  incurs  actual  expense  or  loss,  or  enters  into  valid 
contracts  with  other  parties  which  will  occasion  expense  or  loss. 
As  the  objection  to  these  promises  or  the  doubt  about  them, 
comes  from  the  want  of  consideration,  it  may  be  cured  by  a  seal 
to  each  name,  or  by  one  seal  which  is  declared  in  the  instrument 
to  be  the  seal  of  each. 

It  is  to  be  regretted  that  the  law  does  not  regard  a  merely 
moral  consideration  as  a  sufficient  legal  consideration  ;  but  so 
it  is.  Thus,  it  has  been  held  in  this  country,  that  a  note  given 
by  a  father  to  a  party  who  had  given  needful  medicines,  food, 
and  shelter  to  his  sick  son,  who  was  of  full  age,  was  void  in  law, 
because  there  was  no  legal  consideration.  And  the  same  doc- 
trine was  applied  where  a  son  made  a  similar  promise  for  food 
and  support  to  his  aged  father.  If,  in  either  case,  the  promise 
had  been  made  before  the  food  or  other  articles  were  supplied, 
or  even  a  request  made  before  the  supply,  then  the  supply  of  the 
food  and  support  would  have  been  a  good  consideration.  But 
they  had  all  been  supplied  before  any  request  or  promise,  and 
nothing  was  left  but  the  moral  obligation  of  a  father  to  compen- 
sate one  who  had  supported  his  son,  or  of  a  son  to  support  his 
father  ;  and  this  the  law  does  not  deem  sufficient  to  make  even 
an  express  promise  enforceable  at  law. 


A.V  IMPOSSIDL  E  CONSIDER  A  TION.  \  q  i 

SECTION  III. 

AX   ILLEGAL   CONSIDERATION. 

Tf  the  whole  of  a  consideration,  or  if  any  part  of  the  corw 
sideration  of  an  entire  and  indivisible  promise,  be  illegal,  the 
promise  founded  upon  it  is  void.  Thus,  where  a  note  was  given 
in  part  for  the  compounding  of  penalties  and  suppressing  of  crin> 
inal  prosecutions,  it  was  held  to  be  wholly  void  and  uncollecti 
ble.  And  where  a  part  of  the  consideration  of  a  note  was 
spirituous  liquors,  sold  by  the  payee  in  violation  of  a  Statute, 
such  note  was  held  to  be  wholly  void.  But  if  the  consideration 
consists  of  separable  parts,  and  the  promise  consists  of  corres- 
ponding separable  parts,  which  can  be  apportioned  and  applied, 
part  to  part,  then  each  illegality  v/ill  affect  only  the  promise 
resting  on  it ;  for  in  fact  there  are  many  considerations  and  many 
promises. 

If  the  consideration  be  entire  and  wholly  legal,  and  the  prom- 
ise consists  of  separable  parts,  one  legal  and  the  other  illegal, 
the  promisee  can  enforce  that  part  which  is  legal. 

SECTION  IV. 

AN    IMPOSSIBLE    CONSIDERATION. 

No  contract  or  promise  can  be  enforced  by  him  v/ho  knew 
that  the  performance  of  it  was  wholly  impossible  ;  and  therefore 
a  consideration  which  is  obviously  and  certainly  impossible  is 
not  sufficient  in  law  to  sustain  a  promise.  But  if  one,  makes  a 
promise,  he  cannot  always  defend  himself  when  sued  for  non- 
performance by  showing  that  performance  was  impossible  ;  for 
it  may  be  his  own  fault,  or  his  personal  misfortune,  that  he 
cannot  perform  it.  He  had  no  right  to  make  such  a  promise, 
and  must  answer  in  damages  ;  or  if  he  had  a  right  to  make  it  in 
the  expectation  of  performance,  and  this  has  become  impossible 
subsequently, — as  by  loss  of  property,  for  example, — this  is  his 
misfortune,  and  no  answer  to  a  suit  on  the  promise.  There  are, 
however,  obviously,  promises  or  contracts,  which,  from  their 
very  nature,  must  be  construed  as  if  the  promisor  had  said,  "  I 
will  do  so  and  so,  if  I  can."     For  example,  if  A  promises  to 


1 02  CONS  ID  ERA  TION. 

work  for  B  one  year,  at  $20  a  month,  and  at  the  end  of  six 
months  is  wholly  disabled  by  sickness,  he  is  not  liable  to  an 
action  by  B  for  breach  of  his  contract  ;  and  he  can  recover  his 
pay  for  the  time  that  he  has  spent  in  B's  service.  A  mere  want 
of  money,  which  makes  a  pecuniary  impossibility,  is  not  regarded 
by  the  law  as  a  legal  impossibility. 

SECTION  V. 

FAILURE    OF    COXSIDERATION. 

If  a  promise  be  made  upon  a  consideration  which  is  appar- 
ently valuable  and  sufficient,  but  which  turns  out  to  be  nothing  ; 
or  if  the  consideration  was  originally  good,  but  becomes  wholly 
valueless  before  part  performance  on  either  side,  there  is  an  end 
of  the  contract,  and  the  promise  cannot  be  enforced.  And  if 
money  were  paid  on  such  a  consideration,  it  can  be  recovered 
back,  but  only  the  sum  paid  can  be  recovered  without  any 
increase  or  addition  as  compensation  for  the  plaintiff's  loss  and 
disappointment,  unless  there  were  fraud  or  oppression. 

If  .the  failure  of  consideration  be  partial  only,  leaving  a  sub- 
stantial, though  far  less  valuable,  consideration  behind,  this  may 
still  be  a  sufficient  foundation  for  the  promise,  if  that  be  entire. 
The  promisor  may  then  be  sued  on  the  promise ;  but  he  will 
then  be  entitled,  by  deduction,  set-off,  or  in  some  other  proper 
way,  to  due  allowance  or  indemnity  for  whatever  loss  he  may 
sustain  as  to  the  other  parts  of  the  bargain,  or  as  to  the  whole 
transaction,  from  the  partial  failure  of  the  consideration.  Thus, 
if  he  promised  so  much  money  for  work  done  in  such  a  way,  or  as 
the  price  of  a  thing  to  be  made  and  sold  to  him,  if  no  work  is  done, 
or  the  thing  is  not  made  or  sold,  there  is  an  end  of  the  promise, 
because  the  consideration  has  failed.  But  if  the  work  was  done, 
but  not  as  it  should  have  been,  or  the  thing  made  and  sold,  but 
not  what  it  should  have  been,  and  the  promisor  accepted  the 
work  or  the  thing,  he  may  now  show  that  the  consideration  for 
his  promise  has  partially  failed,  and  may  have  a  proportionate 
reduction  in  his  promise,  or  in  the  amount  he  must  pay.  And 
if  the  promise  be  itself  separable  into  parts,  and  a  distinct  part 
or  proportion  of  the  consideration  failed,  to  which  part  some 


FAILURE  OF  COXSIDERATION.  103 

distinct  part  or  proportion  of  the  promise  could  be  applied,  that 
nart  of  the  promise  cannot  be  enforced,  although  the  residue  of 
the  promise  may  be. 

If  A  agrees  with  B  to  work  for  him  one  year,  or  any  stated 
time,  for  so  much  a  month,  or  so  much  for  the  whole  time,  and, 
after  working  a  part  of  the  time,  leaves  Vi  without  good  cause, 
it  is  the  ancient  and  still  prevailing  rule,  that  A  can  recover 
nothing  in  any  form  or  way.  It  has,  however,  been  held  in  New 
Hampshire,  that  A  can  still  recover  whatever  his  services  are 
worth,  B  having  the  right  to  set  off  or  deduct  the  amount  of 
any  damage  he  may  have  sustained  from  A's  breach  of  the  con- 
tract. This  view  seems  just  and  reasonable,  although  it  has  not 
been  supported  by  adjudication  in  other  States.  If  A  agrees  to 
sell  to  B  five  hundred  barrels  of  flour  at  a  certain  price,  and,  after 
delivering  one-half,  refuses  to  deliver  any  more,  B  can  certainly 
return  that  half,  and  pay  A  nothing.  But  if  B  chooses  to  retain 
that  half,  or  if  he  has  so  disposed  of  or  lost  it  that  he  cannot 
return  it,  he  must  pay  what  it  is  worth,  deducting  all  that  he 
loses  by  the  breach  of  the  contract.  And  this  case  we  think 
analogous  to  that  of  a  broken  contract  of  service  ;  but  B's  lia- 
bility to  pay,  even  in  the  case  supposed  as  to  goods,  has  been 
denied  by  some  courts. 

A  difficulty  sometimes  arises  where  A,  at  the  request  of  B, 
undertakes  to  do  something  for  B,  for  which  he  is  to  be  paid  a 
certain  price  ;  and  in  doing  it  he  departs  materially  from  the 
directions  of  B  and  from  his  own  undertaking.  What  are  now 
the  rights  of  the  parties  .-'  This  question  arises  most  frequently 
in  building  contracts,  in  which  there  is  usuall}^  some  departure 
from  the  original  undertaking.  The  general  rules  are  these : 
If  B  assent  to  the  alteration,  it  is  the  same  thing  as  if  it  were  a 
part  of  the  original  contract.  He  may  assent  expressly,  byword 
or  in  writing ;  or  constructively,  by  seeing  the  work,  and  approv 
ing  it  as  it  goes  on,  or  being  silent ;  for  silence  under  such 
circumstances  would  generally  be  equivalent  to  an  approval. 
But  if  the  change  be  one  which  B  had  a  right,  either  from  the 
nature  of  the  change,  or  the  appearance  of  it,  or  A's  language 
respecting  it,  to  suppose  would  add  nothing  to  the  cost,  then  no 
promise  to  pay  an  increased  price  would  be  inferred  from  either 


I04  BONDS. 

V 

an  express  or  tacit  approval.  Generally,  as  we  have  seen,  if  A 
does  or  makes  what  B  did  ,not  order  or  request,  B  can  refuse  to 
accept  it,  and,  if  he  refuses,  will  not  then  be  held  to  pay  for  it. 
But  if  he  accepts  it,  he  must  pay  for  it.  This  consequence 
results,  however,  only  from  a  voluntary  acceptance.  For  if  A 
choose,  without  any  request  from  B,  to  add  something  to  B's 
house,  or  make  some  alteration  in  it,  Vv^hich  being  done  cannot 
be  undone  or  taken  away  without  detriment  to  the  house,  V>  may 
hold  it,  and  yet  not  be  liable  to  pay  for  it ;  and  A  has  no  right 
to  take  it  away,  unless  he  can  do  so  without  inflicting  any  injury 
whatever  on  B.  This  rule  would  apply  whether  the  addition  or 
alteration  were  larger  or  smaller. 

It  is  sometimes  provided  in  building  contracts  that  B  shall 
pay  for  no  alteration  or  addition,  unless  previously  Ordered  by 
him  in  writing.  But  if  there  be  such  provision,  B  would  be 
liable  for  any  alteration  or  addition  he  ordered  in  any  way,  or 
voluntarily  accepted  after  it  was  made,  when  he  could  have 
rejected  it. 

So  it  is  sometimes  agreed  that  any  additions  or  alterations 
shall  be  paid  for  at  the  same  rate  as  the  work  contracted  for. 
The  law  would  imply  this  agreement  if  the  parties  did  not  make 
it  expressly. 


CHAPTER  VIII. 

BONDS. 

A  BARGAIN  where  both  parties  make  promises,  and  come 
under  obligations,  each  to  the  other,  may  be  made  without  seal, 
and  would  then  be  called  an  Agreement.  If  made  under  seal, 
it  would  generally  be  in  the  form  of,  and  bear  the  name  of,  an 
Indenture.  If  a  promise  by  one  only,  is  made  in  writing,  with- 
out a  seal,  it  is  a  simple  promise  ;  but  if  it  be  made  with  a  seal, 
then  it  would  generally  be  in  the  form  of,  and  bear  the  name 
of,  a  Bond. 

The  essentials  of  a  bond  are  only  that  one  party  should 
acknowledge  himself  "held,  bound,  and  obliged"  unto  another 
party,  to  pay  to  him  a  sum  of  money  ;  and  neither  of  the  words 


BOXDS.  105 

"held,"  or  "bound,"  or  "obliged,"  are  strictly  necessary,  al' 
though  usual  and  proper:  other  words  of  the  same  meaning  will 
have  the  same  effect.  In  such  a  bond,  the  party  bound  is  called 
t"ie  obligor,  and  the  party  to  whom  he  is  bound  is  called  the 
oblip-ce.  The  sum  for  which  the  obligor  is  bound  is  called  the 
penal  sum,  or  the.  poialty.  Such  a  bond  is  simply  an  obligation 
to  pay  so  much  money.  But  a  bond  is  not  often  given  only  for 
this  purpose.  It  is  usually  intended  to  be,  in  fact,  an  obligation 
to  do  something  else,  on  the  penalty  of  paymg  so  much  money  if 
it  be  not  done.  This  something  else  may  be  anything  what- 
ever which  the  obligor  may  contract  to  do.  All  this  is  contained 
in  an  addition,  which  is  written  on  the  same  paper  immediately 
after  the  bond  itself ;  that  is,  after  the  words  of  obligation. 
And  this  is  called  the  "Condition"  of  the  bond.  It  begins  with 
saying,  This  bond  is  on  the  condition  following ;  and  then  recites 
the  things  which  the  obligor  has  undertaken  to  do ;  and  then 
adds,  that  if  all  these  things  are  fully  done  and  performed,  then 
the  bond  shall  be  void  and  of  no  effect,  and  otherwise  shall 
remain  in  full  force. 

The  meaning  and  effect  of  all  this  is,  that  if  the  obligor  fails, 
in  any  respect,  to  do  what  the  condition  recites,  then  he  is  bound 
to  pay  the  money  he  acknowledges  himself,  in  the  bond,  bound 
to  pay.  But  now  the  law  comes  in  to  mitigate  the  severity  of 
this  contract.  And  whatever  be  the  sum  which  the  obligor 
acknowledges  himself,  in  the  bond,  bound  to  pay,  he  is  held  by 
che  courts  to  pay  to  the  obligee  only  that  amount  which  will  be 
a  complete  indemnification  to  him  for  the  damage  he  has  sus- 
tained by  the  failure  of  the  obligor  to  do  what  the  condition 
recites. 

For  example  :  suppose  A  B  makes  a  bond  to  C  D,  acknowl- 
edging himself  bound  to  C  D  in  the  sum  of  ten  thousand  dol- 
lars. The  condition  recites  that  one  E  F  has  been  hired  by 
C  D  as  his  clerk,  and  that  A  B  guarantees  the  good  conduct  of 
E  F  ;  and  if  E  F  does  all  his  duty  honestly  and  faithfully,  then 
the  bond  is  void,  and  otherwise  remains  in  full  force.  Then 
suppose  E  F  to  cheat  C  D  out  of  some  money.  A  B  is  sued  on 
the  bond ;  C  D  cannot  recover  from  him,  in  any  event,  more 
than  the  ten  thousand  dollars  ;  and  he  will  in  fact  recover  from 


I06  BONDS. 

him  only  so  much  of  this  as  will  make  good  to  C  D  all  the  loss  he 
has  sustained  by  E  F's  misconduct.  As  the  obligee  can  recover 
from  the  obligor  only  actual  compensation  for  what  he  loses,  it 
is  usual,  in  practice,  to  make  the  penal  sum  in  the  bond  large 
enough  to  cover  all  the  loss  that  can  happen. 

There  need  be  no  "consideration,"  alleged  or  asserted  in  the 
bond,  or  proved,  because,  in  the  language  of  the  law,  the  seal  is 
(or  implies)  a  consideration. 

The  following  forms  are  those  of  bonds  frequently  given  ; 
and  it  will  be  easy  to  frame  from  some  one  of  them  any  bond 
that  is  wanted  for  other  purposes. 

(25.) 
A  Simple  Bond,  without  Condition. 

Know  all  Men  by  these  Presents,  That  I  {the  obligor)  am 

held  and  firmly  bound  unto  {the  obligee)  in  the  sum  of 

lawful  money  of  the  United  States  of   America,  to  be  paid  to  the  said 

or  his  certain  attorney,  or  assigns: 

to  which  payment      well  and  truly  to  be  made,  I  bind  myself,  my  heirs, 

executors,  and  administrators,  firmly 

by  these  presents. 


In  Testimony  "Whereof,  I  have  set  my  hand  and 

«eal  to  this  inntrument,  on  the  day  of  ,  in  the  year 

of  our  Lord  eighteen  hundred  and 

{IVitnesses.)  {Signatitt'e.)     {Seal.) 

Executed  and  Delivered  in  Presence  of 

(26.) 

Bond  for  Payment  of    Money,  with  a  Condition  to  that 
Effect,  with  Power  of  Attorney  to   confess  Judgment 
annexed. 
Know  all  Men  by  these  Presents,  That  held 

and  firmly  bound  unto  in  the  sum  of 

lawful  money  of  the  United  States  of  America,  to  be  paid  to  the  said 

or  his  certain  attorney,  executors,  administrators,  or  assigns  :  to  which 

payment  well  and  truly  to  be  made,  heirs,  executors, 

and  administrators,  firmly  by  these  presents.     Sealed 

with  seal         Dated  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 


FORMS  OF  BOXDS.  jo; 

The  Condition  of  this  Obligation  is  sucli,  That  if  the  above  bounden 

heirs,  executors,  administrators,  or  any  of  thern 

shall  and  do  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  above-named 

certain  attorney,  executors,  administrators,  or 
assigns,  the  just  sum  of 
dollars, 

without  any  fraud  or  further  deliy,  then  the  above  obligr.tion  to  be  void,  or 
else  to  be  and  remain  in  full  force  and  virtue. 

{Signaticre.)     (Sea/.) 
Sealed  and  Delivered  in  the  Presence  of 

To  ,  Esq.,  A:tornsy  of  the  Court  of  Common  Pleas,  at 

in  the  County  of  ,  in  the  State  of  ,  or  to  any 

other  Attorney  of  the  said  Court,  or  of  any  other  Court,  there  or  clsewlicrc. 

Whereas,  {the  obligor)  in  and  by  a  certain  obligation 

l)earing  even  date  herewith,  do    stand  bound  unto  {tJte  obligee) 

in  the  sum  of  lawful  money  of  the  United  States  of  Amer- 

ica, conditioned  for  the  payment  of 

These  are  to  desire  and  authorize  you,  or  any  of  you,  to  appear  for 

heirs,  executors,  or  administrators,  in  the  said  court  or  elsewhere,  in 
an  action  of  debt,  there  or  elsewhere  brought,  or  to  be  brought,  against  me, 
or  my  heirs,  executors,  or  administrators,  at  the  suit  of  the  said  {the 

obligee)  executors,  administrators,  or  assigns,  on  the  said  obligation,  as  of 
any  term  or  time  past,  present,  or  any  other  subsequent  term  or  time  there  or 
elsewhere  to  be  held,  and  confess  judgment  thereupon  against  me,  or  my  heirs, 
executors,  or  administrators,  for  the  sum  of 

lawful  money  of  the  United  States  of  America,  debt,  besides  costs  of  suit,  in 
sucli  manner  as  to  you  shall  seem  meet :  and  for  your,  or  any  of  your  so  doing, 
this  shall  be  your  sufficient  warrant.  And  I  do  hereby  for  myself,  and  for 
my  heirs,  executors,  and  administrators,  remise,  release,  and  forever  quit  claim 
anto  the  said  (the  obligee)  or  his  certain  attorney,  executors, 

administrator's,  and  assigns,  all  and  all  manner  of  error  and  errors,  mispris- 
ions, misentries,  defects,  and  imperfections  whatever,  in  the  entering  of  the 
said  judgment,  or  any  process  or  proceedings  thereon  or  thereto,  or  anywise 
touching  or  concerning  the  same. 

In  Witness  Whereof,  have  hereunto  set  hand 

and  seal     ,  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

(Signature.)     (Seal) 
Sealed  and  Delivered  in  the  Presence  of 

(27.) 
Bond  for  Conveyance  of  a  Parcel  of  Land. 
Know  all  Men  by  these  Presents,  That  we, 
as  principals,  and  as  sureties,  are  holden  and  stand 


I08  BOABS. 

firmly  bound  unto  in  the  sum  of 

dollars,  to  the  payment  of  which  to  the  said  or 

executors,  administrators,  or  assigns,  we  hereby  jointly  and  severally  bind 
ourselves,  our  heirs,  executors,  and  administrators. 

The  Condition  of  this  obligation  is  such  that  whereas  the  said  obligors 
have  agreed  to  sell  and  convey  unto  the  said  oljiigee  a  certain  jjarcel  of  real 
estate  situated  and  bounded  as  follows,  namely  : 

The  same  to  be  conveyed  by  a  good  and  sufficient  {wari-aiity  or  othc7-\  c'eed 
of  the  said  obligors,  conveying  a  good  and  cle;ir  title  to  the  same,  free  from 
all  incumbrances. 

And  whereas,  for  such  deed  and  conveyance  it  is  agreed  that  the  said 
obligee  shall  pay  the  sum  of  dollars,  of  which 

dollars  are  to  be  paid  in  cash  upon  the  delivery  of  said  deed,  and  the 
remainder  by  the  note      of  the  said  obligee,  bearing  interest 

at  per  cent,  per  annum,  payal  )le  semi-annually,  and  secured  by  a 

mortgage  in  the  usual  form  upon  the  said  premises,  such  note 
to  be  {describe  the  note) 

Now,  therefore,  if  the  said  obligors  shall  upon  tender  by  the  said  obligee 
of  the  aforesaid  cash,  note     ,  and  mortgage  at  any  time  within 
from  this  date,  deliver  unto  the   said  obligee  a  good  and  sufficient  deed  as 
aforesaid,  then  this  obligation  shall  be  void,  otherwise  it  shall  be  and  remain 
in  full  force  and  virtue. 

In  Witness  Whereof,  We  hereunto  set  our  hands  and  seals  this 
day  of  A.D.  i8       . 

Signed  and  Scaled  in  Presence  of 

(28.) 

Bond  for  a  Deed  of  Land,  with  Acknowledgment  before 
Notary  Public. 

Enow  all  Men  by  these  Presents,  That 
of  the  County  of  and  State  of  held 

and  firmly  bound  to  of  in  the  sum  of 

dollars,  to  be  paid  to  said  h's 

executors,  administrators,  or  assigns,  to  the  payment  whereof 
bind  scl  heirs,  executors,  and  administrators,  firmly  by 

these  presents,  sealed  with  seal,  and  dated  the  day  of 

A.D.  i8       . 

The  Condition  of  this  Obligation  is,  That  if  the 

pjiid  upon  payment  of  dollars,  and 

i  iterest,  by  said  within  j-ears  from  this 

date,  agreeably  to  note  of  even  date  herewith,  shall  convey  to 

said  and  heirs  forever,  a  certain  tract  of  land,  situ- 

«ited  in  the  County  of  and  State  of  to  wit  -. 


FORMS  OF  BONDS.  1 09 

by  a  deed  in  common  form  duly  executed  and  acknowl- 

edged, and  in  the  meantime  sb.all  permit  said  to  occupy 

and  improve  said  premises  for  own  use,  then  this  obligadon  shall 

be  void,  otherwise  to  remain  in  full  force  and  effect. 

In  Testimony  Whereof,  have  hereunto  set  hand 

and  seal     ,  the  day  and  year  first  above  written, 

(^Signature)     {Seal.) 

State  of  ^ 

-  ss. 
County  of  ) 

Be  it  Remembered,  That  on  this  day  of 

eighteen  hundred  and  .  before  me.  the  undersiirned.  Notary 

Public  in  and  for  said  County  and  State,  duly  commissioned  and    qualified, 
came  who  to  be  the  same  person    whose  name 

subscribed  to  the  foregoing  instrument  of  writing,  as  party  there ♦^^o, 
and  acknowledged  the  same  to  be  act  and  deed  for  ths 

purpose  therein  mentioned. 

In  Testimony  "Whereof,   I  hive  hereunto  set  my  hand  and  affixed  mv 
official  seal,  at  my  office,  in  the  City  of  ,  the  day  and  yeai 

last  aforesaid. 

Notary  Public. 

(29.) 

Bond  in  another  Form,  for  Conveyance  of  Land,  with 
Acknowledgment. 

Know  all  Men  by  these  Presents,    That 
of  in  the  County  of  and  State  of  held  ano 

firmly  bound  unto  of  in  the  County  of  an  J 

State  of  in  the  penal  sum  of  dollars, 

for  the  payment  of  which  sum,  well  and  truly  to  be  made  to 
heirs,  executors,  and  administrators,  I  bind  myself,  my  heirs,  executors,  and 
administrators,  firmly  by  these  presents. 

Sealed  with  my  seal  and  dated  this  day  of  A.D.  18 

The  Condition  of  the  above  Obligation  is  such.  That  whereas  the  said 
this  day  has  given  the  said 
promissory  note     of  even  date  herewith 

Now,  if,  on  pay.r.ent  of  the  said  note     being  made  on  or  before  the  time 
shall  become  due,  and  all  taxes  on  the 

land  hereinafter  described  having  been  paid  by  the  said 
and  no  right  of  pre-emption  having  been  established  or  claimed  on  the  said 
land,  or  any  part  thereof,  the  said  or  his  legal  represen- 

tatives, shall,  whenever  thereurAo  afterwards  requested,  execute  and  deliver 
to  the  said  or  legal  representatives  a  good 


no 


BONDS. 


and  sufficient  deed,  conveyinj^  to  the 

{here  describe  the  lancl) 
free  and  clear  of  all  incumbrance  then  this  obligation  to  be 

null  and  void,  otherwise  of  full  force  and  effect,  it  being  distinctly  understood 
and  agreed  by  and  between  the  parties  hereto  that  the  time  of  payment  herein 
above  fixed  material  and  of  the  essence  of  this  contract, 

and   that  in  z^st  of  failure  therein,  the   intervention  of   equity  is   forever 

barred. 

{Signatures       {Seals.) 
Signed,  -J^aledy  and  Delivered  in  Presence  of 

State  of  ^ 

cojnty  of  ) 

I,  in  and  for  the  said  county,  in  the  State 

aforesaid,  do  hereby  certify  that  personally  known  to  me 

as  the  same  person  whose  name  subscribed  to  the  above 

bond  for  deed,  appeared  before  me  this  day,  in  person,  and  acknowledged  thai 
he  signed,  sealed,  and  delivered  the  said  bond  as  free  and 

voluntary  act,  and  for  the  use  and  purpose  therein  set  forth. 

Given  under  my  hand  and  seal,  this  day  of 

K.  D.  i8    . 

Notary  Public. 
(30.) 

Bond  to  Corporation  for  Payment  of  Money  due  for  Contri- 
bution to  Capital  Stock,  with  Power  of  Attorney  to  confess 
Judgment. 

Know  all  Men  by  these  Presents,  That 

held  and  firmly  bound  unto 
{name  of  the  corporation)  in  the  sum  of  lawful 

money  of  the  United  States  of  America,  to  be  paid  to 

aforesaid,  their  certain  attorney,  successors  or  assigns.  To  which  payment 
well  and  truly  to  be  made,  firmly  by  these  presents. 

Sealed  with  seal     .     Dated  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and 

The  Condition  of  this  Obligation  is  such.  That  if  the  above  bounden 
heirs,  executors,  and  administrators,  or  any  of  them, 
shall  and  do  well  and  truly  pay,  or  cause  to  be  paid  unto  the  above-named 
their  certain  attorney,  successors  or  assigns,  the  just 
sum  of  such  as  abovesaid,  at  any  time  within 

years  from  the  date  hereof,  together  with  lawful  interest  for  the  same,  in  like 
money,  payable  monthly,  on  the  of  eacli  and  every  month 

hereafter,  and  shall  also  well  and  truly  pay,  or  cause  to  be  paid  unto 

aforesaid,  their  successors  or  assigns,  the  sum  of 
dollars,  on  the  said  of 


FORMS  OF  BONDS.  I  i  j 

ach  3£ui  every  month  hereafter,  as  and  for  the  monthly  contribution  on 

share      of  the  capital  stock  of  aforesaid 

now  owned  by  the  said  without 

any  fraud  or  further  delay ;  provided,  however,  and  it  is  hereby  expressly 
agreed,  that  if  at  any  time  default  shall  be  made  in  the  payment  of  the  said 
principal  money  when  due,  or  of  the  said  interest,  or  the  monthly  contribu- 
tion on  said  stock,  for  the  space  of  after  any  payment  thereof 
sliall  fal^due,  then  and  in  such  case,  the  whole  princijDal  debt 
aforesaid  shall,  at  the  option  of  aforesaid,  their  successors 
and  assigns,  immediately  thereupon  become  due,  payable,  and  recoverable, 
and  payment  of  said  principal  sum  and  all  interest  thereon,  as  well  as  any 
contribution  on  said  share  of  stock  then  due,  may  be 
enforced  and  recovered  at  once,  anything  hereinbefore  contained  to  the  con- 
trary thereof  notwithstanding.  And  the  said  for 
heirs,  executors,  administrators,  and  assigns,  hereby  expresslj-  waive  and 
relinquish  unto  aforesaid,  their  successors  and  assigns, 
all  benefit  that  may  accrue  to  by  virtue  of  any  and  every  law, 
made  or  to  be  made,  to  exempt  the  premises  described  in  the  indenture  of 
mortgage  herewith  given,  or  of  any  other  premises  whatever,  from  levy  and 
sale  under  execution,  or  any  part  of  the  proceeds  arising  from  the  sale 
thereof,  from  the  payment  of  the  moneys  hereby  secured,  or  any  part  thereof, 
then  the  above  obligation  to  be  void,  or  else  to  be  and  remain  in  full  force 
and  virtue. 

(Signatures.)     {Seals.) 
Executed  and  Delivered  in  Presc7ice  of 

To  Esqiiire,  Attorney  of  the  Court  of  Common  Picas  at  in 

the  County  of  in  the  State  of  or  to  any  other  Attorney,  oy 

to  the  Prothonotary  of  the  said  Coicrf,  or  of  any  other  Court,  there  or  elsewhere. 

Whereas,  in  and  by  a  certain  obligation, 

bearing  even  date  herewith,  do      stand  bound  unto  in  the 

sum  of  lawful  money  of  the  United  States  of  America, 

conditioned  for  the  payment  of  the  just  sum  of  such 

as  abovesaid,  at  any  time  within  years  from  the  date  thereof, 

together  with  lawful  interest  for  the  same  in  like  money,  payable  monthly, 
on  the  of  each  and  every  month  thereafter,  and  should  also  well 

and  truly  pay  or  cause  to  be  paid  unto  aforesaid, 

their  successors  or  assigns,  the  sum  of  dollars,  on  the 

of  each  and  every  month  thereafter,  as  and  for  the  monthly 
contribution  on  share     of  the  capital  stock  of 

aforesaid,  now  owned  by  the  said  without 

any  fraud  or  further  delay;  provided,  however,  and  it  is  thereby  expressly 
agreed,  that  if  at  any  time  default  should  be  made  in  the  payment  of  the  said 
principal  money  when  due,  or  of  the  said  interest,  or  the  monthly  contribu* 
tion  on  said  stock,  for  the  space  of  after  any  payment  thereof 

should  fall  due,  then  and  in  such  case 

the  whole  principal  debt  aforesaid  should  at  the  option  of 


112  ^  ASSIGNMENTS. 

aforesaid,  their  successors  and  assigns,  immediately  thereupon  become  due, 
payable,  and  recoverable,  and  payment  of  said  principal  sum,  and  all  interest 
thereon,  as  well  as  any  contribution  on  said 

share  of  stock  then  due,  might  be  enforced  and  recovered  at  once,  any. 
thing  thereinbefore  contained  to  the  contrary  thereof  notwithstanding.  And 
the  said  heirs,  executors,  administrators,  and  assigns, 

thereby  expressly  waive  and  relinquish  unto  aforesaid, 

their  successors  and  assigns,  all  benefit  that  might  accrue  to  ^  by 

virtue  of  any  and  every  law,  made  or  to  be  made,  to  exempt  the  premises 
described  in  the  indenture  of  mortgage  therewith  given,  or  of  any  other 
premises  whatever,  from  levy  and  sale  under  execution,  or  any  part  of  the 
proceeds  arising  from  the  sale  thereof,  from  the  payment  of  the  moneys 
thereby  secured,  or  any  part  thereof.  These  are  to  desire  and  authorize  you, 
or  any  of  you,  to  appear  for  heirs,  executors,  or 

administrators,  in  the  said  court  or  elsewhere,  in  an  action  of  debt,  there  or 
elsewhere  brought  or  to  be  brought,  against  heirs, 

executors,  or  administrators,  at  the  suit  of  aforesaid, 

their  successors  or  assigns,  on  the  said  obligation,  as  of  any  term  or  timts 
past,  present,  or  any  other  subsequent  term  or  time,  there  or  elsewhere  to  be 
held,  and  confess  or  enter  judgment  thereupon  against 

heirs,  executors,  or  administrators,  for  the  sum  of 
lawful  money  of  the  United  States  of  America, 
debt,  besides  cost  of  suit,  in  such  manner  as  to  you  shall  seem  meet;  and 
for  your  or  any  of  your  so  doing  this  shall  be  your  sufficient  warrant.     And 
heirs,  executors,  and  administrators,  remise,  release, 
and  forever  quit  claim,  unto  aforesaid,  their  certain 

attorney,  successors,  and  assigns,  all  and  all  manner  of  error  and  errors,  misv 
prisons,  misentries,  defects,  and  imperfections  whatever,  in  the  entering  of 
the  said  judgment,  or  any  process  or  proceedings  thereon  or  thereto,  or  any. 
wise  touching  or  concerning  the  same. 

In  Witness  "Whereof,  have  hereunto  set  hand 

and  seal      the  day  of  in  the  year  of  our  Lor-i 

one  thousand  eiirht  hundred  and 


Sealed  and  Delivered  in  Prese7tce  of 


{Signatures.)    {Seals.) 


CHAPTER  IX. 

ASSIGNMENTS. 

The  word  "assign"  usually  occurs  in  almost  all  forms  cC 
transfer  and  conveyance ;  but  there  are  certain  instruments  to 
which  the  name  of  "Assignment"  is  more  particularly  givcu 


FOR. ITS  OF  ASSIGNMENTS.  1 1 3 

They  are  instruments  by  which  other  instruments  or  debts  or 
obligations,  as  bonds,  judgments,  wages,  and  the  like,  are  trans- 
ferred. Sometimes  they  are  written  on  the  backs  of,  or  elsewhere 
on  the  same  paper  with,  the  instruments  to  be  transferred  by  the 
assignment.  Some  of  these,  as  assignments  of  deeds  of  grant 
and  conveyance,  of  mortgages,  of  leases,  will  be  given  in  the 
chapters  which  trea,t  of  those  topics.  Here  are  given  sucn 
forms  as  will  enable  one  to  make  an  assignment  for  any  of  th3 
purposes  for  which  assignments  are  usually  made. 

(31.) 

Brief  Form,  of  an  Assignment  to  be  indorsed  on  a  Note,  or 
any  Similar  Promise  or  Agreement. 

I  Hereby,  for  value  received,  assign  and  transfer  the  within  written  (or 
the  above  written)  ,  together  with  all  my  interest 

in  and  all  my  rights  under  the  same,  to  {name  of  the  Assignee). 

{Signature.) 

(32.) 

A  G-eneral  Assignment,  with  Power  of  Attorney. 

Know  all  Men  by  these  Presents,  That  I  fcT 

value  received,  have  sold,  and  by  these  presents  do  grant,  assign,  and  con- 
vey unto  {name  of  the  assignee  and  descriptio  n 
of  the  things  assigned^ 

To  Have  and  to  Hold  the  same  unto  the  said 
executors,  administrators,  and  assigns  forever,  to  and  for  the  use  of 

hereby  constituting  and  appointing  my  true  ard 

lawful  attorney  irrevocable  in  my  name,  place,  and  stead,  for  the  purposes 
aforesaid,  to  ask,  demand,  sue  for,  attach,  levy,  recover,  and  receive  all  such 
sum  and  sums  of  money  which  now  are,  or  may  hereafter  become  due,  owing 
and  payable  for  or  on  account  of  all  or  any  of  the  accounts,  dues,  debts, 
and  demands  above  assigned  giving  and  granting  unto  the 

said  attorney,  full  power  and  authority  to  do  and  perform  all  and  every  ^ct 
and  thing  whatsoever  requisite  and  necessary,  as  fully,  to  all  intents  and 
purposes,  as  might  or  could  do,  if  personally  present  with  fu 

power  of  substitution  and  revocation,  hereby  ratifying  and  confirming  a, 
that  the  said  attorney  or  substitute  shall  lawfully  do  or  cause  to  bv, 

done  by  virtue  hereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  the 
day  of  ,  one  thousand  eight  hundred  and 

{Signature.)     {Seal.) 
Executed  and  Delivered  in  the  Preseiice  of 


114  ASSIGNMENTS. 

(33.) 
Assignment  of  a  Bond. 

Jffnow  all  Men  by  these  Presents,  That 
in  the  hereunto  annexed  obligation  named,  for  and  in  consideration  of  the 
sum  of  lawful  money  of  the   United  States  of  America,   unto 

well  and  truly  paid  by  at  the  time  of  the  execu- 

tion hereof,  the  receipt  whereof  hereby  acknowledge,  have  assigned, 

transferred,  and  set  over,  and  by  these  presents,  do  assign,  transfer,  and  set 
over  unto  the  said  {assignee)  his  executors,  administrators,  and  assigns,  to 
and  for  his  and  their  only  proper  use  and  behoof,  the  said  hereunto  annexed 
obligation,  which  is  given  and  executed  by  to  bearing 

date  the  day  of  Anno  Domini  i8     ,  to  secure  the  payment 

of  the  sum  of  with  lawful  interest  therein  expressed,  and  all 

moneys,  both  principal  and  interest,  thereon  due  and  payable,  or  hereafter 
to  grow  due  and  payable,  with  the  warrant  of  attorney  to  the  said  obligation 
annexed  :  together  with  all  rights,  remedies,  incidents,   and  appurtenances 
Avhatsoever  thereunto  belonging,  or  in  anywise  appertaining,  and  all 
light,  title,  and  interest  therein. 

In  Witness  Whereof,  the  said  have  hereunto  set 

hand    and  seal    ,  this  day  of  Anno  Domini 

one  thousand  eight  hundred  and 

Sealed  and  Delivered  in  the  Presence  of  ns,  > 

(34.) 

Assignment  of  a  Bond,  with  Power  of  Attorney,  and  a 

Covenant. 

Know  all  Men  by  these  Presents,  That 
uf  the  first  part,  for  and  in  consideration  of  the  sum  of  lawful 

money  of  the  United  States  of  America,  to  in  hand  paid  by 

of  the  second  part,  at  or  before  the  ensealing  and  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  ha  bargained,  sold,  and 
assigned,  and  by  these  presents  do  bargain,  sell,  and  assign,  unto  the  said 
party  of  the  second  part,  executors,  administrators,  and  assigns,  a 

certain  written  bond  or  obligation  and  conditions  thereof,  bearing  date  the 

day  of  one  thousand  eight  hundred  and 

executed  by 

and  all  sum  and  sums  of  money  due,  and  to  grow  due  thereon  :  and  the  said 
party  of  the  first  part  do  covenant  with  the  said  party  of  the  second  part, 
that  there  is  now  due  on  the  said  bond  or  obligation,  according  to  the  condi- 
tions thereof,  for  principal  and  interest,  the  sum  of  and  do 
hereby  authorize  the  said  party  of  the  second  part,  in  name  to  ask. 
demand,  sue  for,  recover,  receive,  and  enjoy,  the  money  due  and  that  may 
grow  due  thereon,  as  aforesaid. 


FOR. us  OF  ASS/GA'A/FXTS. 


115 


In  Witness  "Whereof,  have  hereunto  set  hand    and  seal 

the  day  of  one  thousand  eight  hundred  and 

Sealed  and  Delivered  in  the  Presence  of 

(35.) 
Assignment  of  a  Judgment,  in  the  Form  of  an  Indenture. 

This  Indenture,  Made  the  day  of  one  thousand 

eight  hundred  and  between  (assis;nor)  of  the  first  part, 

and  (assignee)  of  tlie  second  part. 

Whereas,  The  said  part     of  the  first  part  one  thousand 

eight  hundred  and  recovered  by  judgment 

in  the         {name  of  court)  against  one  the  sum  of 

Now  this  Indenture  Witnesseth,  That  the  said  part     of  tlie  first  part, 
in  consideration  of  to  duly  paid,  ha 

sold  and  by  these  presents  do  assign,  transfer,  and  set  over  unto  the  said 
part     of  the  second  part,  and  assigns,  the  said  judgment,  and  all 

sum  and  sums  of  money  that  may  be  had  or  obtained  by  means  thereof,  or 
on  any  proceedings  to  be  had  thereupon.  And  the  said  part  of  the  first 
part,  do  hereby  constitute  and  appoint  the  said  part  of  the  second  part, 
and  assigns,  true  and  lawful  attorne}',  irrevocable,  with 

power  of  substitution  and  revocation  for  the  use,  and  at  the  proper  costs 
and  charges  of  the  said  part  of  the  second  part,  to  ask,  demand,  and  receive, 
and  to  sue  out  executions,  and  take  all  lawful  ways  for  the  recovery  of  the 
money  due  or  to  become  due  on  the  said  judgment :  and  on  payment  to 
acknowledge  satisfaction,  or  discharge  the  same.  And  attorneys  one  or 
more  under  for  the  purpose  aforesaid,  to  make  and  substitute, 

and  at  pleasure  to  revoke  ;  hereby  ratifying  and  confirming  all  that 
said  attorney  or  substitute  shall  lawfully  do  in  the  premises.  And  the  said 
part  of  the  first  part  do  covenant,  that  there  is  now  due  on  the  said  judg- 
ment the  sum  of  and  that  will  not  collect  or  receive 
the  same,  or  any  part  thereof,  nor  release  or  discharge  the  said  judgment, 
but  will  own  and  allow  all  lawful  proceedings  therein,  the  said  part  of  the 
second  part  saving  the  said  part  of  first  part,  harmless  of  and  from  any 
costs  in  the  premises. 

In  Testimony  Whereof,  The  part     of  the  first  part,  ha    hereunto  set 
hand    and  seal    the  day  and  year  first  above  written. 

(Seats.) 

Sealed  and  Delivered  in  the  Presence  of 

(36.) 
Assignment  of  Wages,  with  Power  of  Attorney. 
Know  all  Men  by  these  Presents,  That  I 
of  in  the  County  of  in  consideration  of 

to  me  paid  by  of  the  receipt  whereof  I  do  hereby 


1 1 6        SALES  OF  PERSONAL  PROPERTY. 

acknowledge,  do  hereby  assign  and  transfer  to  said  all 

claims  and  demands  which  I  now  have,  and  all  which,  at  any  time  between 
the  date  hereof  and  the  day  of  next,  I  may  and  shall 

have  against  for  all  sums  of  money  due,  and  for  all  sums  of  money 

and  demand  which,  at  any  time  between  the  date  hereof  and  the  said 
day  of  next,  may  and  shall  become  due  to  me,  for  services  as 

to  have  and  to  hold  the  same  to  the  said  his  executors,  administrators, 

and  assigns  forever. 

And  I,  do  hereby  constitute  and  appoint  the  said 

and  his  assigns  to  be  my  attorney  irrevocable  in  the  premises,  to  do  anJl 
perform  all  acts,  matters,  and  things  touching  the  premises,  in  the  like 
manner  to  all  intents  and  purposes  as  I  could  if  personally  present. 

In  Witness  Whereof,  I  have  set  my  hand  and  seal,  this 

day  of  i8     . 

{Seal.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 


CHAPTER  X. 
SALES  OF  PERSONAL  PROPERTY. 


SECTION  L 

WHAT  CONSTITUTES  A  SALE. 

It  is  important  to  distinguish  carefully  between  a  sale  and 
an  agreement  for  a  future  sale.  This  distinction  is  sometimes 
overlooked;  and  hence  the  phrase  "an  executory  contract  of 
sale,"  that  is,  a  contract  of  sale  which  is  to  be  executed  here- 
after,  has  come  into  use  ;  but  it  is  not  quite  accurate  to  speak 
of  this  as  if  it  were  a  sale.  Every  actual  sale  is  an  executed 
contract,  although  payment  or  delivery  may  remain  to  be  made. 
There  may  be  an  executory  contract  for  sale,  or  a  bargain  that 
a  future  sale  shall  be  made ;  but  such  a  bargain  is  not  a  present 
sale  ;  nor  does  it  confer  upon  either  party  the  rights  or  the 
obligations  which  grow  out  of  the  contract  of  sale. 

A  sale  of  goods  is  the  exchange  thereof  for  money.  More 
precisely,  it  is  the  transfer  of  the  property  in  goods  from  a 
seller  to  a  buyer,  for  a  price  paid,  or  to  be  paid,  in  money.  It 
differs  from  an  exchange,  in   law  ;  for  that  is  the  transfer  oi 


WIIA  T  COXSTITUTES  A  SALE. 


117 


chattels  for  other  chattels  ;  while  a  sale  is  the  transfer  of  chat- 
tels for  money,  which  is  the  representative  of  all  value. 

Here  we  must  pause  to  speak  of  the  legal  meaning  of  the 
word  "  property."  It  is  seldom  or  never  used  in  the  law  as  it 
is  in  common  conversation,  to  mean  the  things  themselves 
which  are  bought,  or  sold,  or  owned.  Because  in  law  it  means 
the  ownersJiip  of  the  things,  and  not  the  things  themselves. 

If  a  bargain  transfers  the  property  in  (which  means  the 
ownership  of)  the  thing  to  another  person  for  a  price,  it  is  a 
sals  ;  and  if  it  does  not  transfer  the  property,  it  is  not  a  sale  ; 
and,  on  the  other  hand,  if  it  be  not  a  sale,  it  does  not  transfer 
the  property.  As  soon  as  a  thing  is  sold  the  buyer  owns  it, 
wherever  it  may  be.  And  to  constitute  a  sale  at  common  law, 
nil  that  is  necessary  is  the  agreement  of  competent  parties  that 
the  property  in  (or  ownership  of)  the  subject-matter  shall  then 
pass  from  the  seller  to  the  buyer  for  a  fixed  price. 

The  sale  is  made  when  the  agreement  is  made.  The  com- 
pletion of  the  sale  does  not  depend  upon  the  delivery  of  the 
goods  by  the  seller,  nor  upon  the  payment  of  the  price  by  the 
buyer.  By  the  mutual  assent  of  the  parties  to  the  terms  of  the 
sale,  the  buyer  acquires  at  once  the  property  and  all  the  rights 
and  liabilities  of  property ;  so  that,  in  case  of  any  loss  or  depre- 
ciation of  the  articles  purchased,  the  buyer  will  be  the 
sufferer ;  and  he  will  be  the  gainer  by  any  increase  in  their 
value. 

It  is,  however,  a  presumption  of  the  law,  that  the  sale  is  to 
be  immediately  followed  by  payment  and  delivery,  unless  other- 
wise agreed  upon  by  the  parties.  If,  therefore,  nothing  appears 
but  a  proposal  and  an  acceptance,  and  the  vendee  departs  with- 
out paying  or  tendering  the  price,  the  vendor  may  elect  to 
consider  it  no  sale,  and  may,  therefore,  if  the  buyer  comes  at  a 
later  period  and  offers  the  price  and  demands  the  goods,  refuse 
to  let  him  have  them.  But  a  credit  may  be  agreed  on  expressly, 
and  the  seller  will  be  bound  by  it ;  and  so  he  will  be  if  the  credit 
is  inferred  or  implied  from  usage  or  from  the  circumstances  of 
the  case.  And  if  there  be  a  delivery  and  acceptance  of  the 
goods,  or  a  receipt  by  the  seller  of  earnest,  or  of  part  payment, 
the  legal  inference  is  that  both  parties  agree  to  hold  themselves 


Il8        SALES  OF  PERSONAL  PROPERTY. 

mutually  bound  by  the  bart^ain.  Then  the  buyer  has  either  the 
credit  agreed  upon,  or  such  credit  as  from  custom  or  the  nature 
or  circumstances  of  the  case  is  reasonable.  But  neither  deliv- 
ery, nor  earnest,  nor  part-payment,  is  essential  to  the  com- 
pletion of  a  contract  of  sale.  They  only  prevent  the  seller 
from  rescinding  the  contract  of  sale  without  the  consent  of  the 
purchaser.  Their  effect  upon  sales  under  the  provisions  of  the 
Statute  of  Frauds  will  be  considered  in  the  chapter  on  that  sub- 
ject. It  may  also  be  said  that  no  one  can  be  made  to  buy  of 
another  without  his  own  assent.  Thus,  if  A  sends  an  order  to  B 
for  goods,  and  C  sends  the  goods,  he  cannot  sue  for  the  price,  if 
A  repudiates  the  sale,  although  C  had  bought  B's  business. 

The  seller  (if  no  delivery  with  credit  for  the  price  is  agreed 
on)  has  a  right  to  retain  possession  of  the  property  sold  until 
the  price  is  paid.  This  right  is  called  a  lien,  which  means  the 
right  of  retaining  possession  of  property  until  some  charge  upon 
it,  or  some  claim  on  account  of  it,  is  satisfied.  It  rests,  there- 
fore, on  possession.  Hence  the  seller  (and  every  other  person 
vv-ho  has  a  lien)  loses  it  by  voluntarily  parting  with  the  posses • 
sion,  or  by  a  delivery  of  the  goods.  And  it  is  a  delivery  for 
this  purpose,  if  he  delivers  a  part  without  any  purpose  of  sever- 
ing that  part  from  the  remainder ;  or  if  he  make  a  symbolical 
delivery  which  vests  this  right  and  power  of  possession  in  the 
buyer,  as  by  the  delivery  of  the  key  of  a  w^arehouse  in  whicli 
they  are  locked  up. 

If  the  seller  delivers  the  goods  to  the  buyer,  as  he  thereby 
loses  his  lien,  he  cannot  afterwards,  by  virtue  of  this  lien,  retake 
the  goods  and  hold  them.  But  if  the  delivery  was  made  with 
an  express  agreement  that  non-payment  of  the  price  should 
revest  the  property  in  the  seller,  this  agreement  may  be  valid, 
and  the  seller  can  reclaim  the  goods  from  the  buyer  if  the  price 
be  not  paid. 

If  the  buyer  neglect  or  refuse  to  take  the  goods  and  pay 
the  price  within  a  reasonable  time,  the  seller  may  resell  them 
on  notice  to  the  buyer,  and  look  to  him  for  the  deficiency  by  way 
of  damages  for  the  breach  of  the  contract.  The  seller,  in 
making  such  resale,  acts  as  agent  or  trustee  for  the  buyer ;  and 
his  proceedings  will  be  regulated  and  governed  by  the  rules 


WHA  T  CONSTITUTES  A  SALE. 


119 


usually  applicable  to  persons  acting  in  those  capacities;  and  the 
principal  one  of  these  is,  that  he  will  be  held  to  due  care  and 
diligence,  and  to  perfect  good  faith. 

Certain  consequences  flow  from  the  rules  and  principles 
already  stated  which  should  be  noticed.  Thus,  if  the  party  to 
whom  the  offer  of  sale  is  made  accepts  the  offer,  but  still 
refuses  or  neglects  to  pay  the  price,  and  there  are  ho  circunT 
stances  indicating  a  credit,  or  otherwise  justifying  the  refusal 
or  neglect,  the  seller  may,  as  we  have  said,  disregard  the  accept- 
ance of  his  offer,  and  consider  the  contract  as  never  made,  or 
as  rescinded.  It  would,  however,  be  proper  and  prudent  on  the 
part  of  the  seller  expressly  to  demand  payment  of  the  price 
before  he  treated  the  sale  as  null ;  and  a  refusal  or  neglect 
would  then  give  him  at  once  a  right  to  hold  and  treat  the  goods 
as  his  own.  So,  too,  if  the  seller  unreasonably  neglected  or 
refused  to  deliver  the  goods  sold,  and  especially  if  he  refused  tc> 
deliver  them,  the  buyer  thereby  acquires  the  right  to  considei 
that  no  sale  was  made,  or  that  it  has  been  avoided  (or  annulled). 
But  neither  party  is  bound  to  exercise  the  right  thus  acquired 
by  the  refusal  or  neglect  of  the  other,  but  may -consider  the  saht 
as  complete ;  and  the  seller  may  sue  the  buyer  for  non-pa}' 
ment,  or  the  buyer  may  sue  the  seller  for  non-delivery. 

If  the  seller  has  merely  the  right  of  possession,  as  if  he 
hired  the  goods  ;  or  if  he  has  the  possession  only,  as  if  he  stol«^. 
them,  or  found  them,  he  cannot  sell  them  and  give  good  title  tu 
the  buyer  against  the  owner  ;  and  the  owner  may  therefore 
recover  them  even  from  an  honest  purchaser  who  was  wholly 
ignorant  of  the  defect  in  the  title  of  him  from  whom  he  bought 
them.  This  follows  from  the  rule  above  stated,  that  only  he 
who  has  in  himself  a  right  of  property  can  sell  a  chattel, 
because  the  sale  must  transfer  the  right  of  property  from  the 
seller  to  the  buyer.  The  only  exception  to  the  above  rule  is 
where  money,  or  negotiable  paper  transferable  by  delivery 
(which  is  considered  as  money),  is  sold  or  paid  away.  In  either 
case,  he  who  takes  it  in  good  faith,  and  for  value,  from  a  thief 
or  finder,  holds  it  by  good  title.  But  if  the  owner  once  sold 
the  thing,  although  he  was  deceived  and  induced  to  part  with 
his  property  through  fraud,  he  cannot  reclaim  it  from  one  who 
in  good  faith  buys  it  from  the  fraudulent  party. 


120  SALES  OF  PERSONAL  PROPERTY. 

If  anything  remains  to  be  clone  by  the  seller,  to  or  in  rela- 
tion to  the  goods  sold,  for  their  ascertainment,  identification,  or 
completion,  the  property  in  the  goods  does  not  pass  until  that 
thing  is  done,  and  there  is  as  yet  no  completed  sale.  There- 
fore, if  there  be  a  bargain  for  the  sale  of  specific  goods,  but 
there  remains  something  material  which  the  seller  is  to  do  to 
them,  and  they  are  casually  burnt  or  stolen,  the  loss  is  the  sell- 
er's, because  the  property  (or  ownership)  had  not  yet  passed  to 
the  buyer. 

So,  if  the  goods  are  a  part  of  a  large  quantity,  they  remain 
the  seller's  until  selected  and  separated  ;  and  even  after  that, 
until  recognized  and  accepted  by  the  buyer,  unless  it  is  plain 
from  words  or  circumstances  that  the  selection  and  separation 
I\y  the  buyer  are  intended  to  be  conclusive  upon  both  parties. 

If  repairing  or  measuring  or  counting  must  be  done  by  the 
seller  before  the  goods  are  fitted  for  delivery  or  the  price  can 
l.e  determined,  or  their  quantity  ascertained,  they  remain,  until 
this  be  done,  the  seller's.  And  where  part  is  measured  and 
delivered  this  part  passes  to  the  vendee,  but  the  portion  not  so 
!,et  apart  does  not.  But  if  the  seller  delivers  them  and  the 
buyer  accepts  them,  and  any  of  these  acts  remain  to  be  done, 
these  acts  will  not  be  considered  as  belonging  to  the  contract 
of  sale,  for  that  will  be  regarded  as  completed,  and  the  owner- 
ship of  the  goods  will  have  passed  to  the  buyer,  and  these  acts 
will  be  taken  only  to  refer  to  the  adjustment  of  the  final  settle- 
ment as  to  the  price. 

Thus,  a  purchaser  offers  a  nurseryman  a  dollar  apiece  for  two 
hundred  out  of  a  row  of  two  thousand  trees,  which  are  all  alike, 
and  the  offer  is  accepted.  This  is  no  sale,  because  any  two 
hundred  may  be  delivered,  and  therefore  the  property  or  owner- 
ship of  any  specific  two  hundred  does  not  pass.  But  if  the 
purchaser  or  seller  had  said  the  first  two  hundred  in  the  row,  or 
the  last,  or  every  third  tree,  or  otherwise  indicated  the  specific 
trees,  there  would  have  been  a  sale,  and  by  the  sale  those  specific 
trees  would  have  become  at  once  the  trees  of  the  buyer.  The 
seller  would  dig  up  and  deliver  them  as  the  buyer's  trees,  and 
if  they  were  burned  up  by  accident  an  hour  after  the  sale,  and 
before  digging,  the  buyer  would  lose  the  trees.     If  not  specified. 


DELI  VER  Y  A  ND  ITS  INCIDENTS.  1 2 1 

however,  even  if  they  were  paid  for,  they  remain  the  property 
of  the  nurseryman,  because,  instead  of  an  actual  sale,  there  is 
only  a  bargain  that  he  will  select  two  hundred  from  the  lot,  and 
take  up  and  deliver  them.  And  if  they  are  destroyed  before 
delivery,  this  is  the  loss  of  the  nurseryman. 

Moreover,  it  is  to  be  noticed  that  a  contract  for  a  future  sale 
to  take  place  either  at  a  future  point  of  time,  or  when  a  certain 
event  happens,  does  not,  when  that  time  arrives,  or  on  the  h.ap- 
pening  of  the  event,  become  of  itself  a  sale,  transferring  the 
property.  The  party  to  whom  the  sale  was  to  be  made  does 
not  then  acquire  the  property,  and  cannot  by  tendering  the 
price  acquire  a  right  to  possession  ;  but  he  may  tender  the 
price,  or  whatever  else  would  be  the  fulfillment  of  his  obliga- 
tion, and  then  sue  the  owner  for  his  breach  of  contract,  if  he  will 
not  deliver  the  goods.  But  the  proj^erty  in  the  goods  remains 
i\.i  the  original  owner. 

For  the  same  reason  that  the  property  in  the  goods  must 
pass  by  a  sale,  there  can  be  no  actual  sale  of  any  chattel  or 
goods  which  have  no  existence  at  the  time.  It  may,  as  we  have 
seen,  be  a  good  contract  for  a  future  sale,  but  it  is  not  a  present 
sale.  Thus,  in  contracts  for  the  sale  of  articles  yet  to  be  manu- 
factured, the  subject  of  the  contract  not  being  in  existence 
when  the  parties  enter  into  their  engagement,  no  property 
passes  until  the  chattel  is  in  a  finished  state,  and  has  been 
specially  appropriated  to  the  person  giving  the  order,  and 
approved  and  accepted  by  him. 

As  there  can  be  no  sale  unless  of  a  specific  thing,  so  there 
is  no  sale  but  for  a  price  which  is  certain,  or  which  is  capable 
of  being  made  certain  by  a  distinct  reference  to  a  certain 
standard. 

SECTION  II. 

DELIVERY   AND    ITS   INCIDENTS. 

When  a  sale  is  effected,  the  buyer  has  an  immediate  right 
to  the  possession  of  the  goods,  as  soon  as  he  pays  or  tenders 
the  price ;  or  at  once,  without  payment,  if  the  sale  be  on  credit. 
And  the  seller  is  bound  to  deliver  the  goods. 

What  is  a    sufficient  delivery  is   sometimes  a  question  of 


122         SALES  OF  PERSONAL  PROPERTY. 

difficulty.  In  general,  it  is  sufficient,  if  the  goods  are  placed  in 
the  buyer's  hands  or  his  actual  possession,  or  if  that  is  done 
which  is  the  equivalent  of  this  transfer  of  possession.  Some 
modes  and  instances  of  delivery  we  have  already  seen.  We 
add,  that  if  the  goods  are  landed  on  a  wharf  alongside  of  the 
ship  which  brings  them,  with  notice  to  the  buyer,  or  knowledge 
on  his  part,  this  may  be  a  sufficient  delivery,  if  usage,  or  the 
obvious  nature  of  the  case,  make  it  equivalent  to  actually 
giving  possession.  And  usage  is  of  the  utmost  importance  in 
determining  questions  of  this  kind. 

In  general,  the  rule  may  be  said  to  be,  that  that  is  a  sufficient 
delivery  which  puts  the  goods  within  the  actual  reach  or  power 
of  the  buyer,  with  immediate  notice  to  him,  so  that  there  is 
nothing  to  prevent  him  from  taking  actual  possession. 

When,  from  the  nature  or  situation  of  the  goods,  an  actual 
delivery  is  difficult  or  impossible,  as  in  case  of  a  quantity  of 
timber  floating  in  a  boom,  slight  acts,  as  touching  the  timber, 
or  even  going  near  it  and  pointing  it  out,  are  sufficient  to  con- 
i.titute  a  delivery,  if  they  sufficiently  indicate  the  transfer  of 
possession.  So  if  the  property  which  is  the  subject  of  the 
sale  is  at  sea,  the  indorsement  and  delivery  of  the  bill  of  lading, 
or  other  instrument  of  title,  is  sufficient  to  constitute  a  delivery, 
and  by  such  indorsement  and  delivery  of  the  bill  of  lading  the 
property  in  the  goods  immediately  vests  in  the  buyer ;  and  he 
can  transfer  this  to  one  who  buys  of  him.,  by  his  own  indorse- 
ment and  delivery  of  the  bill  of  lading.  Where  goods  at  sea 
are  sold,  the  seller  should  send  or  deliver  the  bill  of  lading  to 
the  buyer  within  a  reasonable  time,  that  he  may  have  the  means 
of  offering  the  goods  in  the  market.  And  it  has  been  held  that 
a  refusal  of  the  bill  of  lading  authorized  the  buyer  to  rescind 
the  sale. 

Until  delivery,  the  seller  is  bound  to  keep  the  goods  with 
ordinary  care,  and  is  liable  for  any  loss  or  injury  arising  from 
the  want  of  such  care  or  of  good  faith.  But  if  he  exercises 
ordinary  care  and  diligence  in  keeping  the  commodity,  he  is  not 
liable  for  any  loss  or  depreciation  of  it,  unless  this  arises  from 
some  defect  which  he  has  warranted  not  to  exist.  Thus,  in  a 
case  in  New  York.  A  sold  to  B  a  certain  quantity  of  beef,  B 


DELIVERY  AND  ITS  INCIDENTS. 


123 


paying  the  purchase-money  in  full ;  and  it  was  agreed  between 
them  that  the  beef  should  remain  in  the  custody  of  A  until  it 
should  be  sent  to  another  place.  Some  time  after,  B  received 
a  part,  which  proved  to  be  bad,  and  the  whole  was  found,  on 
inspection,  to  be  unmerchantable.  The  court  held  that,  as  the 
beef  was  good  at  the  time  of  its  sale,  the  vendee  (or  buyer) 
must  bear  the  loss  of  its  subsequent  deterioration. 

If  the  buyer  lives  at  a  distance  from  the  seller,  the  seller 
must  send  the  goods  in  the  manner  indicated  by  the  buyer. 
If  no  directions  are  given,  he  must  send  them  in  such  a  way  as 
usage,  or  in  the  absence  of  usage,  as  reasonable  care  would 
require.  And  generally  all  customary  and  proper  precautions 
should  be  taken  to  prevent  loss  or  injury  in  the  transit.  If 
these  are  taken,  the  goods  are  sent  at  the  risk  of  the  buyer,  and 
the  seller  is  not  responsible  for  any  loss.  But  he  is  responsible 
for  any  loss  or  injury  happening  through  the  want  of  such 
care  or  precaution.  And  if  he  sends  them  by  his  own 
servant,  or  carries  them  himself,  they  are  in  his  custody,  and, 
generally,  at  his  risk,  until  delivery.  But  if  the  buyer  distinctly 
indicates  the  way  or  means  by  which  he  wishes  that  the  goods 
should  be  sent  to  him,  as  by  such  a  carrier,  or  such  a  line,  if 
the  seller  complies  with  his  directions,  and  exercises  ordinary 
care  over  the  goods  until  they  are  delivered  to  the  person  q« 
line  so  pointed  out,  his  responsibility  ends  with  this  delivery,  i\\ 
the  same  manner  as  it  would  if  he  delivered  the  goods  into  th« 
hands  of  the  owner. 

This  question  of  delivery  has  a  very  great  importance  in 
another  point  of  view;  and  that  is,  as  it  bears  upon  the  honesty, 
and  therefore  the  validity,  of  the  transaction.  As  the  owner  of 
goods  ought  to  have  them  in  his  possession,  and  as  a  transfer  of 
possession  usually  does,  and  always  should,  accompany  a  sale, 
the  want  of  this  transfer  is  an  indication,  more  or  less  strong, 
that  the  sale  is  not  a  real  one,  but  a  mere  cover.  The  prevail- 
ing rule  may  be  stated  thus  :  Delivery  is  not  essential  to  a  sale 
at  common  law ;  but  if  there  is  no  delivery,  and  a  third  party, 
without  knowledge  of  the  previous  sale,  purchases  the  same 
thing  from  the  seller,  he  gains  an  equally  valid  title  with  the 
first  buyer;  and  if  he  completes  this  title  by  acquiring  posses 


124 


SALES  OF  PERSONAL  PROPERTY. 


sion  of  the  thing  before  the  other,  he  can  hold  it  against  the 
other.  So,  also,  unless  delivery  or  possession  accompany  the 
transfer  of  the  right  of  property,  the  things  sold  are  subject  to 
attachment  by  the  creditors  of  the  seller.  And  if  the  sale  be 
completed,  and  nevertheless  no  change  of  possession  takes 
place,  and  there  is  no  certain  and  adequate  cause  or  justification 
of  the  v.'ant  or  delay  of  this  change  of  possession,  the  transac- 
tion will  be  regarded  as  fraudulent  and  void  in  favor  of  a  third 
party,  who,  either  by  purchase  or  by  attachment,  acquires  the 
property  in  good  faith,  and  without  a  knowledge  of  the  former 
sale.  This  fact,  that  the  thing  sold  remained  in  the  possession 
of  the  seller,  might  be  explained,  and  if  shown  to  be  perfectly 
consistent  with  honesty,  and  to  have  occurred  for  good  reasons, 
and  especially  if  the  delay  in  taking  possession  was  brief,  the 
Utle  of  the  first  buyer  would  be  respected. 

If  goods  are  sold  in  a  shop  or  store,  separated,  and  weighed 
sx  numbered  if  that  be  necessary,  and  put  into  a  parcel,  or 
otherwise  made  ready  for  delivery  to  the  buyer,  in  his  presence, 
ind  he  request  the  seller  to  keep  the  goods  for  a  time  for  him, 
this  is  so  far  a  delivery  as  to  vest  the  property  in  the  goods  in 
Lhe  buyer,  and  the  seller  becomes  the  bailee  of  the  buyer. 
And  if  the  goods  are  lost  while  thus  in  the  keeping  of  the 
seller,  without  his  fault,  it  is  the  loss  of  the  buyer.  (In  law  the 
kvord  bail  means  "to  deliver."  Thus  a  "bailor"  is  one  who 
delivers  a  thing  to  another;  the  "bailee"  is  the  party  to  whom 
it  is  delivered;  and  "bailment"  is  the  delivery.  The  "bail"  of 
a  party  who  is  arrested,  is  he  or  they  to  whom  the  arrested 
person  is  delivered  or  given  up,  on  their  agreement  that  he  shall 
be  forthcoming  when  required  by  law.) 

In  a  contract  of  sale  there  is  sometimes  a  clause  providing 
that  a  mistake  in  description,  or  a  deficiency  in  quality  or 
quantity,  shall  not  avoid  the  sale,  but  only  give  the  buyer  a 
right  to  deduction  or  compensation.  But  if  the  mistake  or 
defect  be  great  and  substantial,  and  affects  materially  the 
availability  of  the  thing  for  the  purpose  for  which  it  was 
bought,  the  sale  is  nevertheless  void,  for  the  thing  sold  is  not 
that  which  was  to  have  been  sold. 

If  the  buyer  knowingly  receives  goods  so   deficient  or   so 


DELI  I  -ER  Y  A  ND  ITS  INCIDENTS.  1 2  5 

different  from  what  they  should  have  been  that  he  might  have 
refused  them,  he  will  be  held  to  have  waived  the  objection,  and 
to  be  liable  for  the  whole  price ;  unless  he  can  show  a  good  rea- 
son for  not  returning  them,  as  in  the  case  of  materials  innocently 
used  before  discovery  of  the  defects,  or  the  like.  Thus,  where 
a  man  bought  a  chandelier  warranted  sufficient  to  light  a  certain 
room,  and  kept  it  six  months,  the  court  did  not  permit  him  to 
return  it  and  refuse  payment,  although  it  was  not  what  it  had 
been  warranted  to  be.  Sometimes  two  or  three  months,  or 
even  less,  is  held  too  long  a  keeping  to  permit  a  subsequent 
return.  But  though  the  buyer  cannot  return  the  thing,  yet, 
when  the  price  is  demanded,  he  may  set  off  whatever  damages 
he  has  sustained  by  the  seller's  breach  of  contract,  and  the 
seller  can  recover  only  the  value  to  the  buyer  of  the  goods  sold, 
even  if  that  be  nothing.  But  a  long  delay  or  silence  may  imply 
a  waiver  of  even  this  right  on  the  part  of  the  buyer. 

One  who  orders  many  things  at  one  time,  and  by  one  bargain, 
may,- generally,  refuse  to  receive  a  part  without  the  rest ;  but  \{ 
he  accepts  any  part,  he  severs  that  part  from  the  rest,  and  rebuts 
(or  removes)  the  presumption  that  it  was  an  entire  contract ;  the 
buyer  will  then  be  held  as  having  given  a  separate  order  for 
each  thing,  or  part,  and  as  therefore  bound  to  receive  such  parts 
as  are  tendered,  unless  some  distinct  reason  for  refusal  attaches 
to  them.  If  many  several  things  are  bought  at  one  auction, 
but  by  different  bids,  and  especially  if  the  name  of  the  buyer  bt^ 
marked  against  each,  there  is  a  separate  sale  to  him  of  each  one, 
and  it  is  independent  of  the  others ;  so  that  he  must  take  and 
pay  for  any  one  or  more,  although  the  others  are  not  what  they 
should  be,  or  cannot  be  had.  If,  however,  it  could  be  shown  by 
the  nature  of  the  case,  or  by  evidence,  that  the  things  were  so 
connected  that  one  was  bought  entirely  for  the  sake  of  the  other, 
he  would  not  be  obliged  to  take  the  one  unless  he  could  have 
the  other.  This  rule  applies  also  when  the  things  sold  are  lots 
of  land.  Indeed,  the  general  rule  may  be  stated  thus.  The 
question  whether  it  is  one  contract,  so  that  the  buyer  shall  not 
be  bound  to  receive  any  part  unless  the  whole  be  tendered  to 
him,  will  be  determined  by  ascertaining  from  all  the  facts 
whether  the  parts  so  belong  together  that  it  may  reasonably  be 


126         SALES  OF  PERSONAL  PROPERTY. 

supposed  that  none  would  have  been  purchased  if  the  whole  had 
not  been  purchased,  or  if  any  part  could  not  have  been  pur- 
chased. 

The  buyer  may  have,  by  the  terms  of  the  bargain,  the  right 
of  redelivery.  For  sales  are  sometimes  made  upon  the  agree- 
ment that  the  purchaser  may  return  the  goods  within  a  fixed,  or 
within  a  reasonable  time.  He  may  have  this  right  without  any 
condition,  and  then  has  only  to  exercise  it  at  his  discretion. 
But  he  may  have  the  right  to  return  the  thing  bought,  only  if  it 
turns  out  to  have,  or  not  to  have,  certain  qualities  ;  or  only  upon 
the  happening  of  a  certain  event.  In  such  case  the  burden  of 
proof  is  on  him  to  show  that  the  circumstances  exist  which  are 
necessary  to  give  him  this  right.  In  either  case  the  property 
vests  in  the  buyer  at  once,  as  in  ordinary  sales;  but  subject  to 
the  right  of  return  given  him  by  the  agreement.  If  he  does  not 
exercise  his  right  within  the  agreed  time,  or  within  a  reasonable 
time  if  none  be  agreed  upon,  the  right  is  wholly  lost,  the  sale 
becomes  absolute,  and  the  price  of  the  goods  may  be  recovered 
in  an  action  for  goods  sold  and  delivered.  And  if  during  the 
time  the  buyer  so  misuse  the  property  as  to  materially  impair 
its  value,  he  cannot  tender  it  back,  but  is  liable  for  the  price. 

SECTION  III. 

CONTRACTS    VOID    FOR    ILLEGALITY    OR   FRAUD. 

As  the  law  will  not  compel  or  require  any  one  to  do  that 
which  it  forbids  him  to  do,  no  contract  can  be  enforced  at  law 
which  is  tainted  with  illegality.  It  may,  however,  be  necessary 
to  consider  whether  the  contract  be  entire  or  separable  into 
parts,  and  whether  it  is  wholly  or  partially  illegal.  If  the  whole 
consideration,  or  any  part  of  the  consideration,  be  illegal,  the 
promise  founded  upon  it  is  void,  whether  the  promise  is  legal  or 
not.  But  if  the  consideration  is  legal,  and  the  promise  is  in 
part  legal  and  in  part  illegal,  it  is  valid  for  the  legal  part  and 
may  be  enforced  for  that  part.  Thus,  if  a  master  of  a  vessel 
agreed  to  smuggle  goods,  and  in  consideration  of  his  doing  so 
the  owner  promised  to  pay  him  one-fourth  of  his  profits,  and  also 
to  advance  twenty  dollars  a  month  to  his  family  during  a  certain 


CONTRACTS  VOID  FOR  ILLEGALITY  OR  FRAUD.      127 

time,  the  master  could  enforce  no  part  of  this  promise,  and 
recover  no  damages  for  any  breach  of  it,  because  the  considera- 
tion is  illegal.  But  if,  for  one  thousand  dollars  paid,  the  receiver 
agreed  to  sell  and  deliver  a  quantity  of  merchandise,  and  also  to 
assist  the  buyer  in  some  contemplated  fraud,  he  would  be  bound 
to  sell  and  deliver  the  goods,  because  the  consideration  was  legal, 
and  this  part  of  the  promise  was  legal,  but  not  to  assist  in  the 
fraud,  because  this  part  of  the  promise  is  illegal.  I  mean  to 
say,  that  if  a  whole  promise,  or  any  part  of  a  promise  that  cannot 
be  severed  into  substantial  and  independent  parts,  is  illegal,  the 
whole  promise  is  void.  But  if  the  consideration  is  legal,  and 
the  promise  is  legal  in  part  and  illegal  in  part,  and  that  part  of 
the  promise  which  is  legal  can  be  severed  from  that  part  which 
is  illegal,  and  then  be  a  substantial  promise  having  a  value  of  its 
own,  this  legal  part  can  be  enforced.  For  further  remarks  upon 
this  subject,  however,  I  refer  to  the  previous  chapter  on  Con- 
sideration. 

Formerly,  an  agreement  to  sell  at  a  future  day  goods  which 
the  promisor  had  not  at  the  time,  and  had  not  contracted  to  bu}', 
and  had  no  notice  or  expectation  of  receiving  by  consignment, 
was  considered  open  to  the  objection  that  it  was  merely  a  wager, 
and  therefore  void.  But  later  cases  have  admitted  it  to  be  ^ 
valid  contract. 

We  have  already  said,  in  a  preceding  chapter,  that  fraud 
vitiates  and  avoids  every  contract  and  every  transaction. 
Hence,  a  wilfully  false  representation  by  which  a  sale  is  effected ; 
or  a  purchase  of  goods  with  the  design  of  not  paying  for  them  ; 
or  hindering  others  from  bidding  at  auction  by  wrongful  means ; 
or  selling  at  auction,  and  providing  by-bidders  to  run  the  thing 
up  fraudulently;  or  selling  "with  all  faults,"  and  then  purposely 
concealing  and  disguising  them,  as  when  a  man  advertised  a  ship 
for  sale  at  auction  "with  all  faults,"  but  purposely  put  her  in  a 
situation  where  an  important  fault  could  not  be  easily  detected; 
or  any  similar  act,  will  avoid  a  sale.  No  title  or  right  passes  by 
such  sale  to  the  fraudulent  party ;  but  the  innocent  party, 
vvhether  buyer  or  seller,  may  waive  the  fraud,  and  insist  that  the 
fraudulent  party  shall  not  take  advantage  of  his  own  fraud  to 
avoid  the  sale. 


128         SALES  OF  PERSONAL  PROPERTY. 

A  buyer  who  is  imposed  upon  by  a  fraud,  and  therefore  has 
a  right  to  annul  the  sale,  must  exercise  this  right  as  soon  as 
may  be  after  discovering  the  fraud.  He  does  not  lose  the  right 
necessarily  by  every  delay,  but  certainly  does  by  any  consid- 
erable and  unexcused  delay. 

A  seller  may  rescind  and  annul  a  sale  if  he  were  induced  to 
make  it  by  fraud.  But  he  may  waive  the  right  and  sue  for  the 
l^rice.  If,  however,  the  fraudulent  buyer  gets  the  goods  on  a 
credit,  and  the  seller  sues  for  the  price  before  the  credit  expires, 
this  suit  is  a  confirmation  of  the  whole  sale,  including  the  credit; 
or  rather  it  is  an  entire  waiver  of  his  right  to  annul  the  sale, 
and  the  suit  cannot  be  maintained  until  the  credit  has  wholly 
expired. 

If  a  party  who  has  been  defrauded  by  any  contract  brings  an 
action  to  enforce  it,  this  is  a  waiver  of  his  right  to  rescind,  and 
a  confirmation  of  the  contract.  Or  if,  with  knowledge  of  the 
fraud,  he  offers  to  perform  the  contract  on  conditions  which  he 
had  no  right  to  exact,  this  has  been  held  so  effectual  a  waiver  of 
the  fraud  that  he  cannot  set  it  up  in  defense,  if  sued  on  the 
contract. 

SECTION  IV. 

SALES    WITH    WARRANTY. 

A  SALE  may  be  with  warranty ;  and  this  may  be  general,  or 
particular  and  limited.  A  general  warranty  does  not  extend  to 
defects  which  are  known  to  the  purchaser;  or  which  are  open  to 
inspection  and  observation,  unless  the  purchaser  is  at  the  time 
unable  to  discover  them  readily,  and  relies  rather  upon  the 
knowledge  and  warranty  of  the  seller.  A  warranty  may  also 
be  either  express  or  implied.  It  is  not  implied  by  the  law  gen- 
erally merely  from  a  full,  or,  as  it  is  called,  a  sound  price.  The 
rule  of  law,  caveat  emptor  {let  the  bnyer  take  care),  prevents  this. 
But  this  rule  never  applies  to  cases  of  fraud.  As  a  general  rule, 
however,  mere  silence  on  the  part  of  the  seller  is  not  fraud ; 
but  the  usage  of  the  trade  will  be  considered,  and  if  that  require 
a  declaration  of  certain  defects  whenever  they  exist,  the  absence 
of  such  a  declaration  is  a  warranty  against  such  defects.  Mere 
declarations  of  opinion  are  not  a  warranty.     Thus,  in  England, 


SALES  WITH  JVARKAA'TV. 


129 


an  action  was  brought  on  a  Avarranty  that  certain  goods  were  fit 
for  the  China  market.  The  plaintiff  produced  a  letter  from  the 
defendant,  saying  that  he  had  goods  fit  for  the  China  market, 
which  he  offered  to  sell  cheap.  But  the  court  held  that  such  a 
letter  was  not  a  warranty,  but  merely  an  invitation  to  trade,  it 
not  having  any  specific  reference  to  the  goods  actually  boughl 
by  the  plaintiff. 

If  these  declarations  are  intended  to  deceive,  and  have  that 
effect,  they  may  avoid  the  sale  for  fra.ud.  And  affirmations  of 
quantity  or  quality,  which  are  made  pending  the  negotiations 
for  sale,  with  a  view  to  procure  a  sale,  and  have  that  effect,  will 
be  regarded  as  a  warranty;  thus,  in  New  York,  it  was  held  that 
a  representation  made  by  a  vendor,  upon  a  sale  of  flour  in  bar- 
rels, that  it  was  in  quality  superfine  or  extra-superfine,  and  worth 
a  shilling  a  barrel  more  than  common,  coupled  with  the  assur- 
ance to  the  buyer's  agent  that  he  might  rely  upon  such  repre- 
sentation, was  a  warranty  of  the  quality  of  the  flour.  So  in 
P^ngland,  where  upon  the  sale  of  a  horse  the  vendor  said  to  the 
vendee,  "You  may  depend  upon  it,  the  horse  is  perfectly  quier 
and  free  from  vice;"  this  was  held  to  amount  to  an  expres5i 
warranty  that  he  was  quiet  and  free  from  vice. 

Goods  sold  by  sample  are  warranted  by  such  sale  to  conform 
to  the  sample  ;  but  there  is  no  warranty  that  the  sample  is  what, 
it  appears  to  be.  Thus,  in  England,  there  was  a  sale  of  five 
bags  of  hops,  with  express  warranty  that  the  bulk  answered  th  c 
samples  by  which  they  were  sold.  The  sale  was  in  January  ;  at 
that  time  the  samples  fairly  answered  to  the  commodity  sold, 
and  no  defect  was  at  that  time  perceptible  to  the  buyer.  In 
July  following,  every  bag  was  found  to  have  become  unmer- 
chantable and  spoiled,  by  heating,  caused  probably  by  the  hops 
having  been  fraudulently  watered  by  the  grower,  or  some  other 
person,  before  they  were  purchased  by  the  defendant.  The 
seller  knew  nothing  of  this  fact  at  the  time  of  sale,  and  th 
samples  were  as  much  damped  as  the  rest ;  and  it  was  then 
impossible  to  detect  it.  It  was  held  by  the  court  that  there  was 
here  no  implied  warranty  that  the  bulk  of  the  commodity  was 
merchantable  at  the  time  of  sale,  although  a  merchantable  price 
was  given. 

9 


130  SALES  OF  PERSONAL  PROPERTY. 

A  breach  of  warranty  does  not  always  authorize  the  buyer 
to  return  the  article  sold,  unless  there  be  an  agreement  to  that 
effect,  or  fraud ;  but  only  to  sue  on  the  warranty,  and  recover 
damages  for  the  breach  of  it.  But  if  one  orders  a  thing  for  a 
special  purpose  known  to  the  seller,  he  may  certainly  return  it  if 
it  be  unfit  for  that  purpose,  if  he  does  so  as  soon  as  he  ascertains 
its  unfitness. 

The  seller  of  goods  actually  in  his  possession  as  owner  i> 
held  to  warrant  his  own  title  by  the  fact  of  the  sale.  But  if  the 
property  be  not  in  the  possession  of  the  vendor,  and  there  be 
no  assertion  or  ownership  by  him,  no  implied  warranty  of  title 
arises. 

If  a  thing  is  ordered  for  a  special  purpose,  and  is  supplied, 
lihere  is  an  implied  warranty  that  it  is  fit  for  that  purpose.  In 
ane  case,  the  defendant  was  a  dealer  in  ropes,  and  represented 
himself  to  be  a  manufacturer  of  the  article.  The  buyer,  a  wine- 
merchant,  applied  to  him  for  a  crane-rope.  The  seller's  foreman 
went  to  the  buyer's  premises,  in  order  to  ascertain  the  dimen- 
sions and  kind  of  rope  required.  He  examined  the  crane  and 
the  old  rope,  and  took  the  necessary  admeasurements,  and  was 
told  that  the  new  rope  was  wanted  for  the  purpose  of  raising 
pipes  of  wine  out  of  the  cellar,  and  letting  them  down  into  the 
street ;  when  he  informed  the  buyer  that  a  rope  must  be 
made  on  purpose.  The  seller  did  not  make  the  rope  himself, 
but  sent  the  order  to  his  manufacturer,  who  employed  a  third 
person  to  make  it.  It  was  held  that,  as  between  the  parties  to 
the  sale,  there  was  an  implied  warranty  that  the  rope  was  a  fit 
and  proper  one  for  the  purpose  for  which  it  was  ordered.  And 
the  seller  was  held  responsible,  not  only  for  the  rope,  which 
broke,  but  for  a  pipe  of  wine  which  was  thereby  lost. 

This  principle  must  not  be  applied  to  those  cases  where  an 
ascertained  article  is  purchased,  although  it  be  intended  for  a 
special  purpose.  For  if  the  thing  itself  is  specifically  selected 
and"  purchased,  the  purchaser  takes  upon  himself  the  risk  of  its 
effecting  its  purpose.  This  is  illustrated  in  an  English  case 
thus  :  "  If  a  man  says  to  another,  '  Sell  me  a  horse  fit  to  carry 
me,'  and  the  other  sells  a  horse  which  he  knows  to  be  unfit  to 
ride,  he  will  be  liable  for  the  consequences  ;  but  if  a  man  says, 


FORMS  OF  BILLS  OF  SALE.  131 

*  Sell  me  that  gray  horse  to  ride/  and  the  other  sells  it,  knowing 
that  the  buyer  will  not  be  able  to  ride  it,  that  would  not  make 
him  liable."  If  he  said,  "Sell  me  that  gray  horse  z/"he  is  fit  to 
ride,"  and  the  seller  sold  it  knowing  he  was  not  fit,  he  would  be 
liable. 

It  has  been  much  discussed  whether  a  bill  of  sale,  describing 
the  article  sold,  amounts  to  a  warranty  that  the  article  conforms 
to  the  description.  It  seems  now  to  be  well  settled  that  it  does. 
In  a  recent  Massachusetts  case,  there  was  a  bill  of  sale  as  follows  : 
"  H.  &  Co.  bought  of  T.  \V.  &  Co.  tivo  cases  of  indigo,  $272." 
The  article  sold  was  not  indigo,  but  principally  Prussian  blue. 
No  fraud  was  imput'jd  to  the  seller,  and  the  article  was  so  pre- 
pared as  to  deceive  experienced  and  skilful  dealers  in  indigo. 
The  naked  question  was  presented,  whether  the  bill  of  sale  con- 
stituted a  warranty  that  the  article  sold  was  indigo.  And  the 
court  held  that  it  did.  Here  the  warranty  implied  by  the  bill  of 
sale  was  as  to  the  kind  of  goods.  In  another  case  the  bill  was, 
"  Sold  E.  T.  H.  2,000  gallons  prime  quality  ivinter  oil.''  The 
thing  sold  was  oil,  and  wanter  oil ;  but  not  prime  quality.  And 
the  Court  held  that  the  bill  of  sale  amounted  to  a  warranty 
that  it  was  of  tJiat  quality.  In  an  English  case,  a  vessel  was 
advertised  for  sale  as  "copper  fastened;"  and  that  was  held 
to  be  a  warranty  that  she  was  so  fastened  according  to  the 
usual  understanding  of  merchants. 

One  who  sells  provisions  is  always  considered  in  law  as  war- 
ranting that  they  are  good  and  w^holesome. 

(37.) 
Bill  of  Sale  of  Personal  Property. 
Know  all  Men  by  these  Presents,  That  I  {name  of  tJie 

seller)  in  the  county  of  for  and  in  consideration  of  the  sum 

of  to  in  hand  well  and  truly  paid,  at  or  before 

signing,  sealing,  and  delivery  of  these  presents,  by  {name  of  the  buy  e7-) 

the  receipt  whereof  I  the  said  do  hereby  acknowledge, 

have  granted,  bargained,  and  sold,  and  by  these  presents  do  grant,  bargaip, 
and  sell  unto  the  said 

To  Have  and  to  Hold  the  said  granted  and  bargained 
unto  the  said  heirs,  executors,  administrators,  and  assigns, 

to  only  proper  use,  benefit,  and  behoof  forever,  and 

the  said  does  vouch  himself  to  be  the  true  and  lawful  owner  of  the 


132         SALES  OF  PERSONAL  PROPERTY. 

goods  and  effects  hereby  sold,  and  to  have  in  himself  full  power,  good  right, 
and  lawful  authority  to  dispose  of  the  said  in  manner  as  aforesaid, 

and  I  do,  for  myself,  my  heirs,  executors,  and  administrators,  hereby  covenant 
and  agree  to  warrant  and  defend  the  said 

(the goods  sold)  unto  the  said  heirs,  executors, 

and  administrators,  and  assigns,  against  the  lawful  claims  and  demands  oi 
all  persons  whomsoever: 

In  Witness  Whereof,  the  said  have  hereunto 

set  hand     and  seal     this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

Executed  and  Delivered  in  Presence  of 

(38.) 

Bill  of  Sale  of  Personal  Property,  with  a  Condition  to  make 
it  a  Mortgage,  with  Power  of  Sale. 

Know  all  Men  by  these  Presents,  That 
in  consideration  of  paid  by  the 

receipt  whereof  is  hereby  acknowledged,  do  hereby  grant,  sell,  transfer,  and 
deliver  unto  the  said  the  following  goods  and  chattels. 

namely : 

To  Have  and  to  Hold  all  and  singular  the  said  goods  and  chattels  to  the 
said  and  executors,  administrators,  and  assigns 

to  their  own  use  and  behoof  forever. 

And  hereby  covenant  with  the  grantee     that 

the  lawful  owner  of  the  said  goods  and  chattels  ;  that  they  are  free  from  all 
incumbrances,  that  have  good  right 

to  sell  the  same  as  aforesaid  ;  and  that  will  warrant  and  defend  tb» 

same  against  the  lawful  claims  and  demands  of  all  persons. 

Provided  Nevertheless,  that  if  the  grantor     ,  or  executor* , 

administrators,  or  assigns  shall  pay  unto  the  grantee  or, 

executors,  administrators,  or  assigns,  the  sum  of  in 

from  this  date,  with  interest  semi-annually  at  the  rate  of  per  cent,  per 

annum,  and  until  such  payment  shall  not  waste  or  destroy  the  same,  nor  suf- 
fer them  or  any  part  thereof  to  be  attached  on  mesne  process  ;  and  sliall  not, 
except  with  the  consent  in  writing  of  the  grantee     or  representa- 

tives, attempt  to  sell  or  to  remove  from  the  same  or  any  part 

Jliereof, — then  this  deed,  as  also  note  of  even  date  herewith,  signed 

by  the  said  whereby  promise  to  pay 

to  the  grantee  or  order  the  said  sum  and  interest  at  the  times  aforesaid, 
shall  be  void. 

But  upon  any  Default  in  the  performance  of  the  foregoing  condition, 
the  grantee     ,  or  executors,  administrators,  or  assigns,  may  sell 

the  said  goods  and  chattels  by  pubhc  auction,  first  giving  day's  notice 

in  writing  of  the  time  and  place  of  sale  to  the  grantor  or  representa- 


THE  SALE  OF  ONE'S  BUSINESS.  1 33 

fives.     And  out  of  the  money  arising  from  such  sale  the  grantee     ,  or 
representatives  shall  be  entitled  to  retain  all  sums  then  secured  by  this  mort- 
o-ao-e,  whether  then  or  thereafter  payable,  including  all  costs,  charges,  and 
expenses  incurred  or  sustained  by  them  in  relation  to  the  said 

property,  or  to  discharge  any  claims  or  liens  of  third  persons  affecting  the 
same,  rendering  the  surplus,  if  any,  to  the  grantor  or  executors, 

administrators,  or  assigns. 

And  it  is  Agreed,  that  the  grantee     ,  or  executors,  administrators, 

or  assigns,  or  any  person  or  persons  in  their  behalf,  may  purchase  at  any  sale 
made  as  aforesaid  ;  and  that,  until  default  in  the  performance  of  the  condition 
of  this  deed,  the  grantor  and  executors,  administrators,  and  assigns, 

may  retain  possession  of  the  above-mortgaged  property,  and  may  use  and 
enjoy  the  same. 

In  "Witness  Whereof,  the  said  hereunto  set 

hand     and  seal     ,  this  day  of 

ii:i  the  year  one  thousand  eight  hundred  and 

Signed,  Sealed,  atid  Delivered  in  Presence  of 

SECTION  V. 

THE  SALE  OF  ONE'S  BUSINESS. 

Such  sales  are  not  unfrequent  in  this  country  ;  and  the 
seller  always  agrees  and  promises  that  he  will  not  pursue  that 
trade,  business,  or  occupation  again.  There  are  numerous 
cases,  both  in  English  law-books  and  in  our  own,  which  have 
arisen  from  bargains  of  this  kind.  The  law  seems  now  to  be 
settled,  that  such  a  contract  is  wholly  void  and  inoperative,  pro- 
vided the  seller  agrees  to  give  up  his  business  and  never  resume 
it  again,  at  any  time  or  anyxuhere  ;  that  is,  without  any  limita- 
tion of  space  or  time  ;  because  it  is  against  the  public  interest 
that  a  man  should  be  permitted  to  cast  himself  out  from  his 
business  or  trade  for  the  rest  of  his  life.  But  the  contract  is 
good,  if  for  a  fair  consideration  the  seller  agrees  not  to  resume 
or  carry  on  that  business  within  a  certain  time,  or  within  certain 
limits.  What  these  limits  must  be  is  not  certain.  The  courts 
say  they  must  be  "  reasonable,"  and  made  in  good  faith.  A 
contract  not  to  carry  on  a  business  in  a  certain  town  would 
undoubtedly  be  good.  So,  we  should  say,  would  be  a  bargain 
not  to  do  so  within  a  certain  State.  In  one  case  in  Massachu- 
setts, a  contract  not  to   use   certain   machines   in  any  of  the 


134  STOPPAGE  IN  TRANSITU. 

United  States  except  two  (which  were  Massachusetts  and 
Rhode  Island)  was  held  valid,  all  of  the  States  but  two  being 
considered  as  a  sufficiently  defined  or  limited  place  ;  but  this 
was  unusual.  The  courts  generally  would  sanction  such  a 
bargain,  if  it  were  limited  to  only  a  part  of  the  United  States  ; 
as  to  all  New  England,  for  example. 

In  such  a  contract,  it  would  be  better  for  the  parties  to  agree 
.upon  the  amount  which  the  seller  should  pay  by  way  of 
damages,  if  he  violated  his  bargain,  because  it  might  be  very 
difficult  to  prove  specific  damages  ;  and  such  a  bargain,  if  it 
were  reasonable,  would  be  enforced  by  law. 

Such  damages,  agreed  on  beforehand,  are  called  liquidated 
damages.  In  all  cases  where  damages  are  demanded,  and  are 
not  agreed  on,  they  are  called  iinliqiiidated  damages,  and  it  is 
the  duty  of  the  jury  to  determine,  from  the  evidence  before 
them,  what  damages  the  injured  party  has  suffered,  and  what 
amount  would  indemnify  him. 


CHAPTER  XL 

STOPPAGE  IN  TRANSITU. 

Here  is  an  instance  where  a  Latin  phrase  has  become 
English,  by  general  adoption  and  use.  In  transitu  means  "  in 
the  transit,"  and  the  English  phrase  may  just  as  well  be  used  ; 
but  the  Latin  one  is  used  much  oftener.  What  the  whole 
phrase  Stoppage  in  transitu  means,  is  this.  A  seller,  who  has 
sent  goods  to  a  buyer  at  a  distance,  and  after  sending  them 
learns  that  the  buyer  is  insolvent,  may  stop  the  goods  at  any 
time  before  they  reach  the  buyer.  His  right  to  do  this  is  called 
the  right  of  Stoppage  in  tj^ansitu. 

If  the  goods  are  sent  to  pay  a  precedent  and  existing  debt, 
they  are  not  subject  to  this  right. 

The  right  exists  only  ujDon  actual  insolvency ;  but  this  need 
not  be  formal  insolvency,  or  bankruptcy  at  law ;  an  actual 
inability  to  pay  one's  debts  in  the  usual  way  being  enough.  If 
the  seller,   in   good  faith,   stops  the  goods,  in  a  belief  of  the 


STOPPAGE  IN  TRANSITU. 


135 


buyer's  insolvency,  the  buyer  may  at  once  defeat  this  stoppage, 
and  reclaim  the  goods,  by  payment  of  the  price.  So  he  may, 
by  a  tender  of  adequate  security,  if  the  sale  be  on  credit. 

The  stoppage  must  be  effected  by  the  seller,  and  evidenced 
by  some  act ;  but  it  is  not  necessary  that  he  should  take  actual 
possession  of  the  goods.  If  he  gives  a  distinct  notice  to  the 
party  in  possession,  whether  carrier,  warehouseman,  middleman, 
or  whoever  else,  before  the  goods  reach  the  buyer,  this  is 
enough.  But  a  notice  of  stoppage  in  transitu,  to  be  effectual, 
must  be  given  either  to  the  person  who  has  the  immediate 
custody  of  the  goods  ;  or  if  to  the  principal  whose  servant  has 
the  custody,  then  at  such  a  time,  and  under  such  circumstances, 
as  that  he  may,  by  the  exercise  of  reasonable  diligence,  com- 
municate it  to  his  servant  in  time  to  prevent  the  delivery  to  the 
consignee. 

Goods  can  be  stopped  only  while  in  transitu  ;  and  they  are 
in  transitu  only  until  they  come  into  the  possession  of  th'i; 
buyer.  But  this  possession  need  not  be  actual,  a  constructive!', 
possession  by  the  buyer  being  sufficient  to  prevent  this  stof 
page ;  as  if  the  goods  are  placed  on  the  wharf  of  the  buyer,  or 
on  a  neighboring  wharf  with  notice  to  him,  or  in  a  warehouse 
with  delivery  of  the  key  to  him,  or  of  an  order  on  the  ware- 
houseman. 

But  the  entry  of  the  goods  at  the  custom-house,  withou*. 
payment  of  duties,  does  not  terminate  the  transit.  If  th-; 
buyer  has  demanded  and  marked  them  at  the  place  where  the  r 
had  arrived  on  the  termination  of  the  voyage  or  journey,  per- 
sonally or  by  his  agent ;  or  if  the  carrier  still  holds  the  goods, 
but  only  as  the  agent  of  the  buyer ;  in  all  these  cases  the 
transit  is  ended.  But  if  the  carrier  holds  them  by  a  lien  for 
his  charges  against  the  buyer,  the  seller  may  pay  these  charges 
and  discharge  the  lien,  and  then  stop  the  goods  in  transitu. 

If  the  buyer  has,  in  good  faith  and  for  value,  sold  the  goods, 
"to  arrive,"  before  he  has  received  them,  and  indorsed  and 
delivered  the  bill  of  lading,  this  second  purchaser  holds  the 
goods  free  from  the  first  seller's  right  to  stop  them.  "  But  if  the 
goods  and  bill  are  transferred  only  as  security  for  a  debt  due 
from  the  first   purchaser  to   the  transferee,  the  original  seller 


136  GUARANTY. 

may  stop  the  goods,  and  hold  them  subject  to  this  security,  and 
need  pay  only  the  specific  advances  made  on  their  credit,  or  on 
that  very  bill  of  lading,  and  not  a  general  indebtedness  of  the 
first  purchaser  to  the  second. 

A  seller  who  stops  the  goods  iii  transitu  does  not  rescind 
the  sale,  but  holds  the  goods  as  IhQ p7'-opcrty  of  the  buyer;  and 
they  may  be  redeemed  by  the  buyer  or  his  representatives,  by 
paying  the  price  for  which  they  are  a  security ;  and  if  not 
redeemed,  they  become  the  seller's,  only  in  the  same  way  as  a 
pledge  might  become  his ;  that  is,  he  may  sell  them  at  a  proper 
time,  and  in  a  proper  manner,  and  with  due  notice,  so  that  the 
buyer  may  protect  his  interests.  And  if  the  seller  then  fails  to 
obtain  from  them  the  full  price  due,  he  has  a  claim  for  the 
')alance  upon  the  buyer.  If  he  gets  more  than  the  amount  due 
>o  him,  he  must  pay  over  the  balance  to  the  buyer  or  his 
Assignees. 

An  honest  buyer,  apprehending  bankruptcy,  might  wish  to 
return  the  goods  to  their  original  owner;  and  this  he  could 
undoubtedly  do,  if  they  have  not  become  distinctly  his  prop- 
erty, and  the  seller  his  creditor  for  the  price.  But  if  they  have, 
the  buyer  has  no  more  right  to  benefit  this  creditor  by  such  an 
appropriation  of  these  goods,  than  any  other  creditor  by  giving 
him  any  other  goods. 


CHAPTER  XII. 
GUARANTY. 

A  GUARANTOR  is  One  who  is  bound  to  another  for  the  fulfil- 
ment of  a  promise,  or  of  an  engagement,  made  by  a  third  party. 
This  kind  of  contract  is  very  common.  Generally  it  is  not 
negotiable ;  that  is,  not  transferable  so  as  to  be  enforced  by  the 
transferee  as  if  it  had  been  given  to  him  by  the  guarantor.  No 
special  form  or  words  are  necessary  to  the  contract  of  guaranty  ; 
and  if  the  word  "  guarantee  "  be  used,  and  the  whole  instru- 
ment contains  all  the  characteristics  of  a  note  of  hand,  payable 
to  order  or  bearer,  then  it  is  negotiable.     Thus,  in  a  case  in 


GUARANTY. 


137 


New  York,  the  instrument  was  as  follows  :  "  For  and  in  con- 
sideration of  thirty-one  dollars  and  fifty  cents  received  of  B.  F. 
Spencer,  I  hereby  guarantee  the  payment  and  collection  of  the 
within  note  to  him  or  bearer.  Auburn,  Sept.  25,  1837.  (Signed) 
Thomas  Burns."  And  it  was  held  negotiable.  What  negotiable 
means  will  be  more  fully  explained  in  the  chapter  on  Notes  of 
Hand  and  Bills  of  Exchange. 

The  guaranty  may  be  enforced,  although  the  original  debt 
cannot ;  as,  for  example,  the  guaranty  of  the  promise  of  a  wife 
or  an  infant ;  and  sometimes  the  guaranty  of  a  debt  is  requested, 
and  given,  for  the  very  reason  that  the  debt  is  not  enforceable 
at  law.  But,  generally,  the  liability  of  the  principal  measures 
and  limits  the  liability  of  the  guarantor.  And  if  the  creditor 
agree  that  the  principal  debt  shall  be  reduced  or  lessened  in  a 
certain  proportion,  the  obligation  of  the  guarantor  is  reduced 
by  law  in  an  equal  proportion. 

A  contract  of  guaranty  is  construed  somewhat  strictly. 
Thus,  a  guaranty  of  the  notes  of  one,  does  not  extend  to  notes 
which  he  gives  jointly  with  another. 

A  guarantor  who  pays  the  debt  of  the  principal  may  demand 
from  his  creditor  the  securities  he  holds,  although  not  an 
assignment  of  the  debt  itself,  or  of  the  note  or  bond  which 
declares  the  debt,  for  that  is  paid  and  discharged.  And  some- 
times the  creditor  will  not  be  permitted  to  resort  to  the  guar- 
antor until  he  has  collected  as  much  as  he  can  from  these 
securities. 

Unless  the  guaranty  is  by  a  sealed  instrument,  there  must 
be  a  consideration  to  support  it.  If  the  original  debt  or  obliga- 
tion rest  upon  a  good  consideration,  this  will  support  the 
promise  of  guaranty,  if  this  promise  was  made  at  the  same  time 
with  or  prior  to  the  original  debt.  But  if  that  debt  or  obliga- 
tion be  first  incurred  and  completed  before  the  guaranty  is 
given,  there  must  be  a  new  consideration  for  the  promise  to 
guarantee  that  debt  or  the  guaranty  is  void.  But  the  consid- 
eration need  not  pass  from  him  who  receives  the  guaranty  to 
him  who  gives  it.  Any  benefit  to  him  for  whom  the  guaranty 
is  given,  or  any  injury  to  him  who  receives  it,  is  a  sufficient 
consideration  if  the  guaranty  be  given  because  of  it. 


138        •  GUARANTY. 

A  guaranty  is  not  binding  unless  it  is  accepted,  and  unless 
the  guarantor  has  knowledge  of  this.  But  the  law  presumes 
this  acceptance  in  general,  when  the  giving  of  the  guaranty  and 
any  action  on  the  faith  of  it,  by  the  party  to  whom  it  is  given, 
are  simultaneous.  In  New  York,  wherever  the  guaranty  is 
absolute,  notice  of  its  acceptance  is  unnecessary,  unless  expressly 
or  impliedly  required  by  the  offer  of  guaranty.  But,  generally, 
an  offer  to  guarantee  a  future  operation,  especially  if  by  letter, 
does  not  bind  the  offerer  unless  he  has  such  notice  of  the 
acceptance  of  his  offer  as  would  give  him  a  reasonable  opportu- 
nity of  making  himself  safe. 

If  the  liability  of  the  principal  be  materially  varied  by  the 
act  of  the  party  guaranteed,  without  the  consent  of  the  guar- 
antor, the  guarantor  is  discharged.  Many  interesting  cases 
have  arisen  which  involve  this  question.  Thus,  where  a  bond 
was  given  conditioned  for  the  faithful  performance  of  the  duties 
of  the  office  of  deputy  collector  of  direct  taxes  for  eight  certain 
townships,  and  the  instrument  of  appointment,  referred  to  in 
the  bond,  was  afterwards  altered  so  as  to  extend  to  another 
township  without  the  consent  of  the  surety,  the  Supreme  Couit 
of  the  United  States  held  that  the  surety  was  discharged  from 
his  responsibility  for  moneys  collected  by  his  principal  after  the 
alteration.  Again,  in  an  English  case,  the  facts  were,  that,  in 
a  bond  by  sureties  for  the  careful  attention  to  business  and  the 
faithful  discharge  of  the  duties  of  an  agent  of  a  bank,  it  was 
provided  "that  he  should  have  no  other  business  of  any  kind, 
nor  be  connected  in  any  shape  with  any  trade,  manufacture,  or 
mercantile  copartnery,  nor  be  agent  for  any  individual  or  copart- 
nery in  any  manner  or  way  whatsoever,  nor  be  security  for  any 
individual  or  copartnery  in  any  manner  or  way  whatsoever." 
The  bank  subsequently,  without  the  knowledge  of  the  sureties, 
increased  the  salary  of  the  agent,  he  undertaking  to  bear  one- 
fourth  part  of  all  losses  which  might  be  incurred  by  his  dis- 
counts. It  was  held  that  this  was  such  an  alteration  of  the 
contract,  and  of  the  liability  of  the  agent,  that  the  sureties  were 
discharged,  notwithstanding  that  the  loss  arose,  not  from  dis< 
counts,  but  from  improper  conduct  of  the  agent. 

The  guarantor  is  also  discharged  if  the  liability  or  obligation 


GUARANTY.  130^ 

De  renewed  or  extended  by  law.  As  if  a  bank,  incorporated 
for  twenty  years,  be  renewed  for  ten  more,  and  the  officers  and 
business  of  the  bank  go  on  without  change ;  the  original  sure- 
ties of  the  cashier  are  not  held  beyond  the  first  term.  So  a 
guaranty  to  a  partnership  is  extinguished  by  a  change  among 
the  members,  although  neither  the  name  nor  the  business  of  the 
firm  be  changed.  But  a  guaranty,  by  express  terms,  may  be 
made  to  continue  over  most  changes  of  this  kind. 

A  specific  guaranty,  for  one  transaction  which  is  not  yet 
exhausted,  is  not  revocable.  If  it  be  a  continuing  or  a  general 
guaranty,  it  is  revocable,  unless  an  express  agreement,  founded 
on  a  consideration,  makes  it  otherwise. 

A  creditor  may  give  his  debtor  some  accommodation  or 
indulgence  without  thereby  discharging  his  guarantor.  It  would 
seem  just,  however,  that  he  should  not  be  permitted  to  give  him 
any  indulgence  which  would  materially  prejudice  the  guarantor. 
Generally,  a  guarantor  may  always  pay  a  debt,  and  so  acquire 
at  once  the  right  of  proceeding  against  the  party  whose  debt  he 
has  paid.  On  this  ground,  it  has  been  held,  that  where  a  surety 
requested  the  creditor  to  proceed  against  the  principal  debtor, 
and  the  creditor  refused  to  do  this,  and  afterwards  the  debtoi 
became  insolvent  and  the  surety  was  without  indemnity,  still 
the  surety  (or  guarantor)  was  not  discharged,  because  he  mighl. 
have  paid  the  debt,  and  then  sued  the  party  whose  debt  h(t 
paid.  In  New  York,  it  seems  to  be  the  law,  that,  if  the  surety 
requests  the  creditor  to  proceed  against  the  principal  debtc  r 
and  he  refuses,  and  the  principal  debtor  afterwards  becomes 
insolvent,  the  surety  will  be  discharged.  If,  by  gross  negli- 
gence, the  creditor  has  lost  his  debt,  and  has  deprived  the  surety 
of  security  or  indemnity,  the  surety  must  be  discharged  unless 
he  was  equally  negligent.  If  a  creditor  gives  time  to  his  debtor 
by  a  binding  agreement  which  will  prevent  a  suit  in  the  meai> 
time,  this  undoubtedly  discharges  the  guarantor  (unless  the 
surety  consents  to  the  delay)  because  it  deprives  him  of  his 
power  of  acquiring  a  right  of  proceeding  against  the  debtor, 
by  paying  the  debt ;  for  the  debtor  cannot  during  that  time  be 
sued. 

If  there  be  a  failure  on  the  part  of  the  principal,  and  the 


140 


GUARANTY. 


guarantor  is  looked  to,  he  should  have  reasonable  notice  of  this. 
And,  generally,  any  notice  would  be  reasonable  which  would 
be  sufficient  in  fact  to  prevent  his  suffering  from  the  delay. 
And  if  there  be  no  notice,  and  the  guarantor  has  been  unharmed 
thereby,  he  is  not  discharged. 

If  a  guaranty  purport  to  be  official,  that  is,  if  it  be  made  by 
one  who  claims  to  hold  a  certain  office,  and  to  give  the  promise 
of  guaranty  only  as  such  officer,  and  not  personally,  the  general 
rule  is,  that  he  is  not  liable  personally,  provided  he  actually  held 
that  office  and  had  a  right  to  give  the  guaranty  officially.  But 
he  would  still  be  held  personally,  if  the  promise  made,  or  the 
relations  of  the  parties  indicated  that  credit  was  given  person- 
9>lly  to  the  parties  promising,  and  not  merely  to  them  in  their 
"'fficial  capacity  ;  or  if  he  had  no  right  to  give  the  promise  in 
Vis  official  capacity. 

A  guaranty  was  given  for  the  price  of  a  cargo  of  iron,  and 
ll.ie  buyer  bargained  with  the  seller  to  pay  him  more  than  the 
fair  price,  the  excess  to  go  towards  an  old  debt.  The  guaranty 
was  held  to  be  altogether  void,  because  fraudulent ;  and  could 
not  be  enforced  even  for  the  fair  price. 

FORMS  OF  GUARANTY. 

(39.) 
Guaranty  to  be  Indorsed  on  a  Note. 
For  value  received  I  guarantee  the  payment  of  the  within-written  note. 
{Date.)  (Signature.) 

(40.) 
Guaranty  of  a  Note  on  Separate  Paper. 

For  value  received  I  guarantee  the  due  payment  of  a  promissory  note 
dated  whereby  promises  to  pay  to  , 

dollars,  in  months. 

(Date.)  {Signattire.) 

(41.) 
Guaranty  in  Another  Way, 

For  value  received  I  guarantee  that  the  within  (note  or  bill,  or  that  such 
a  note  or  bill,  describing  it)  will  be  collected  and  paid  if  demanded  in  due 
course  of  law. 

(Date.)  (Signature.) 


FORMS  OF  GUARANTY.  14T 

(42.) 
Letter  of  Guaranty. 

Sir^ — If  you  will  sell  to  Mr.  of  the  goods  he  wishes  to 

buy  (pr  the  goods  may  be  described)  to  the  amount  of  {this  may  be 

omitted  if  the  guaranty  is  intended  to  be  of  any  amotinf),  within  year 

(or  days  or  months,  or  the  time  in  ay  be  omitted  if  it  is  not  intended  to  limit 
it)ixom  the  date  hereof.  I,  for  value  received,  hereby  promise  and  guarantee 
that  the  price  thereof  shall  be  duly  paid.  {This  letter  should  also  state  onzuhat 
terms  the  goods  should  be  sold,  as  to  credit,  delivery,  etc.,  unless  it  is  inte?tded 
to  leave  all  this  to  the  buyer  and  seller, 

{Date.)  {Signature.) 

When  goods  or  stocks  or  other  securities  are  given  as  col- 
lateral security  for  borrowed  money  or  any  other  debt,  an 
instrument  is  sometimes  given,  the  intention  of  which  is  to 
guarantee  that  the  collaterals  should  be  and  remain  sufficient  to 
secure  the  indebtedness.  It  may  be  in  one  of  the  following 
forms,  as  the  bargain  requires.  These  are  sometimes  calle(^ 
"margin  guaranties." 

(43.) 
Guaranty  with  Collaterals  authorizing  Sale. 

"Whereas,  I  {or  we)  have  deposited  with  as  collateral 

security  for  payment  at  maturity  of  the  following  {here  describe  /Ae 

debt  guaranteed) 

Now  this  "Witnesseth,  That  in  the  event  of  the  non-pa}-ment  at 
maturity  of  any  or  all  of  these  hereby  authorize  t. 

assigns,  to  sell  the  above     {the  collaterals)  at  public  or  privati 
sale,  or  at  the  brokers'  board,  without  notice  to  and  apply  proceed-t 

to  pa}'ment  of  said  and  all  necessary'  expenses,  holding 

responsible  for  any  deficiency. 

In  Witness  Whereof,  have  hereunto  set  hand     and 

seal    ,  this  day  of  one  thousand  eight  hundred  and 

{Siptature.) 
{Witness) 

(44.) 

Guaranty  with  Collaterals,  promising  Additional  security 
or  authorizing  Sale. 

Having  Borrowed  this  Day  of  {the  sum  borrowed)  on 

the  following  collaterals  {here  describe  the  collaterals) 

I  Hereby  Agree,  in  case  the  market-price  of  the  said  stock  should  fall 
at  any  time  during  the  continuance  of  the  loan  to  an  amount  insufficient  to 


142 


THE  ST  A  TUTE  OF  ERA  UDS. 


cover  the  sum  loaned,  with  per  cent,  margin  added  thereto,  (hat  in 

such  event  I  will,  on  demand,  deposit  additional  security  to  be  approved  by 
him,  which  shall  be  sufficient  to  keep  the  collaterals  thus  deposited  equal  to 
a  sum  per  cent,  above  said  loan,  and  so  as  often  as  said  collaterals 

shall  diminish  ;  and  that,  in  default  thereof,  the  said  shall 

have  power  to  sell  at  public  or  private  sale,  without  notice,  all,  or  any  of  the 
said  securities  (as  well  as  any  others  he  may  hold),  to  pay  the  amount  of  the 
said  loan,  with  all  interest  and  charges  thereon,  and  for  so  doing,  I  fully 
elease  him  of  all  claims,  actions,  and  causes  thereof. 


CHAPTER  XIII. 

THE  STATUTE  OF  FRAUDS. 


SECTION  I. 

ITS   PURPOSE   AND    GENERAL    PROVISIONS. 

The  Statute  of  Frauds,  so  called,  was  passed  in  the  29th 
year  of  Charles  II.  (1677)  for  the  purpose  of  preventing  frauds 
and  perjuries,  by  requiring  in  many  cases  written  evidence  of  a 
contract.  In  nearly  all  our  States  a  similar  statute  has  been 
enacted.  But  no  two  of  the  statutes  of  the  different  States 
agree  exactly  in  all  their  provisions.  They  do,  however,  agree 
substantially;  and  we  shall  give  in  this  chapter  the  prevailing 
and  nearly  universal  rules  for  the  construction  and  application 
of  this  statute.  It  is  often  of  very  great  importance  in  com- 
mercial transactions.  Those  provisions  which  especially  relate 
to  business  law  are  contained  in  the  fourth  and  seventeenth 
sections. 

By  the  fourth  section,  it  is  enacted  that  "no  action  shall  be 
brought  whereby  to  charge  any  executor  or  administrator,  upon 
any  special  promise,  to  answer  damages  out  of  his  own  estate; 
or  whereby  to  charge  the  defendant,  upon  any  special  promise, 
to  answer  for  the  debt,  default,  or  miscarriages  of  another  per- 
son ;  or  to  charge  any  person  upon  any  agreement  made  upon 
consideration  of  marriage;  or  any  contract  for  sale  of  lands, 
tenements,  or  hereditaments,  or  any  interest  in  or  concerning 
them;  or  upon    any  agreement  that   is  not  to  be   performed 


A  PROMISE  TO  PA  V  THE  DEBT  OF  ANOTHER. 


143 


within  the  space  of  one  year  from  the  making  thereof :  unless 
the  agreement,  upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof,  shall  be  in  writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other  per- 
son thereunto  by  him  lawfully  authorized." 

By  the  seventeenth  section,  it  is  enacted  that  "  no  contract 
for  the  sale  of  any  goods,  wares,  and  merchandises,  for  the 
price  of  £,\o  sterling,  or  upwards,  shall  be  allowed  to  be  good, 
except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and 
actually  receive  the  same,  or  give  something  in  earnest  to  bind 
the  bargain,  or  in  part  of  payment,  or  that  some  note  or  memo- 
randum in  writing  of  the  said  bargain  be  made  and  signed  by 
the  parties  to  be  charged  by  such  contract,  or  their  agents 
thereunto  lawfully  authorized." 

The  second  and  fifth  clauses  of  the  fourth  section,  and  the 
whole  of  the  seventeenth,  relate  to  our  present  subject.  The 
second  clause  prevents  an  oral  guaranty  from  being  enforced  at 
law ;  but  if  money  be  paid  on  one,  it  cannot  be  recovered  back. 

SECTION  II. 

A  PROMISE  TO  PAY  THE  DEBT  OF  ANOTHER. 

It  is  very  often  difficult  to  say  whether  the  promise  of  one 
to  pay  for  goods  delivered  to  another  is  an  original  promise,  as 
to  pay  for  one's  own  goods,  and  then  it  need  not  be  in  writing, 
or  a  promise  to  pay  the  debt  or  guaranty  the  promise  of  him  to 
whom  the  goods  are  delivered,  and  then  it  must  be  in  writing. 
If  it  be  a  promise  to  pay  the  debt  of  another,  it  is  said  to  be  a 
collateral  promise,  and  not  an  original  promise.  The  question 
may  always  be  said  to  be  :  To  ivliom  did  the  seller  give,  and  luas 
authorized  to  give,  credit?  This  question  the  jury  will  decide, 
upon  consideration  of  all  the  facts,  under  the  direction  of  the 
court.  If  a  seller  sues  one  to  whom  he  did  not  deliver  the 
goods,  on  the  ground  that  this  other  promised  to  pay  for  them, 
then  the  question  is.  Did  this  other  promise  to  pay  for  them  as 
for  his  own  goods .''  for  then  the  promise  need  not  be  in  writing. 
Or  did  he  promise  to  pay  for  them  as  for  the  goods  of  the  party 
receiving  them  }  and  then  it  is  a  promise  to  pay  the  debt  of 


144 


THE  STATUTE  OF  FRAUDS. 


another,  and  must  be  in  writing.  If,  on  examination  of  the  books 
of  the  seller,  it  appears  that  he  charged  the  goods  to  the  party 
who  received  them,  it  will  be  difficult,  if  not  impossible,  for  the 
seller  to  maintain  that  he  sold  them  to  the  other  party.  But  if 
he  charged  them  to  this  other,  such  an  entry  would  be  good 
evidence,  and,  if  confirmed  by  circumstances,  strong  evidence 
that  this  party  was  the  purchaser.  But  it  cannot  be  conclusive; 
for  the  party  not  receiving  the  goods  may  always  prove,  if  he 
can,  that  he  was  not  the  buyer,  and  that  he  promised  only  as 
surety  for  the  party  who  was  the  buyer,  and,  consequently,  that 
his  promise  cannot  be  enforced  if  not  in  writing.  And,  in  general, 
in  determining  this  question,  the  court  will  always  look  to  the 
actual  character  of  the  transaction,  and  the  intention  of  the 
parties. 

The  courts,  both  in  England  and  in  America,  have  often 
endeavored  to  illustrate  this  question.  Thus,  in  an  early  Eng. 
lish  case,  the  court  said :  "  If  two  come  to  a  shop,  and  one  buyjs, 
and  the  other,  to  gain  him  credit,  promises  the  seller,  'If  hr 
does  not  pay  you,  I  will,'  this  is  a  collateral  undertaking,  anu 
void,  without  writing,  by  the  Statute  of  Frauds.  But  if  he 
says,  *Let  him  have  the  goods,  I  will  be  your  paymaster,'  this 
is  s,n  undertaking  as  for  himself,  and  he  shall  be  intended  to  be 
the  very  buyer,  and  the  other  to  act  but  as  his  servant  "  So, 
in  a  case  in  Maryland,  the  court  said :  "  If  B  gives  credit  to  C 
for  goods  sold  and  delivered  to  him,  on  the  promise  of  A  to 
'see  him  paid,*  or  'to  pay  him  tor  them  if  C  should  not,'  in  that 
case  it  is  the  immediate  debt  of  C,  for  which  an  action  will  Xw*. 
against  him,  and  the  promise  of  A  is  a  collateral  undertaking 
to  pay  that  debt  [and  must  be  in  writing],  he  being  only  liable 
as  a  surety.  But  where  the  party  undertaken  for  is  under  no 
liability  himself,  the  promise  is  an  original  undertaking  of  the 
party  promising,  and  binding  upon  him  without  being  in  writing. 
Thus,  if  B  furnishes  goods  to  C,  on  the  express  promise  of  A 
to  pay  for  them,  and  if  A  says  to  him,  'Let  C  have  goods  to  such 
an  amount,  and  I  will  pay  you,'  and  the  credit  is  given  to  A,  in 
that  case  C  being  under  no  liability,  there  is  nothing  to  which 
the  promise  of  A  can  be  collateral;  but  A  being  the  immediate 
debtor,  it  is  his  original  undertaking,  and  not  a  promise  to 


AGREEMENT  NOT  TO  BE  PERFORMED  IN  A    YEAR.     145 

answer  for  the  debt  of  another;"  and  therefore  need  not  be  in 
writing. 

Whenever  the  main  purpose  and  object  of  the  promisor  is 
not  to  answer  for  another,  but  to  subserve  some  purpose  of  his 
own,  his  promise  is  not  within  the  statute,  although  it  may  be 
in  form  a  promise  to  pay  the  debt  of  another,  and  although  the 
performance  of  it  may  incidentally  have  the  effect  of  extinguish- 
ing the  liability  of  another.  If  an  old  debt  is  extinguished  by 
a  new  promise,  this  promise  is  considered  as  an  original  one,  and 
not  within  the  requirement  of  the  statute. 

If  there  be  an  oral  promise  to  pay  the  debt  of  another,  and 
also  to  do  some  other  thing,  this  last  can  be  enforced  at  law,  if 
this  other  thing,  and  so  much  of  the  promise  as  relates  to  it,  can 
be  severed  from  the  debt  of  the  other  and  the  promise  relating 
to  that  debt  ;  for  although  tJiat  promise  must  be  in  writing,  the 
other  may  be  oral. 

SECTION  III. 

AN   AGREEMEXT   NOT   TO    I5E   PERFORMED    WITHIX    A    YEAR. 

Under  the  fifth  clause  in  the  fourth  section,  it  is  held  that 
an  agreement  which  viay  be  performed  within  the  year  is  not 
affected  by  the  statute,  as  the  words,  "  that  is  not  to  be  performed 
within  one  year,"  do  not  apply  to  an  agreement  which,  when 
made,  was,  and  by  the  parties  was  understood  to  be,  fairly 
capable  of  complete  execution  within  a  year,  without  the  inter- 
vention of  extraordinary  circumstances, — although  in  point  of 
fact  its  execution  was  extended  much  beyond  the  year.  So 
where  one  agreed  orally,  for  one  guinea,  to  give  another  a  num- 
ber of  guineas  on  the  day  of  his  marriage,  it  was  held  that 
this  promise  was  not  within  the  statute,  that  is,  not  one  which 
the  statute  required  to  be  in  writing,  because  he  might  be 
married  within  a  year,  and  the  promisor  was  therefore  bound 
by  it.  So  where  one  agreed  orally  never  to  go  into  the  staging 
business  in  a  certain  place,  as  this  contract  could  last  only  while 
the  promisor  lived,  and  he  might  die  within  a  year,  he  was  held 
to  be  bound  by  it. 
10 


146  THE  STATUTE  OF  FRAUDS. 

SECTION  IV. 

THE  FORM  AND  SUBJECT  MATTER  OF  THE  AGREEMENT. 

The  "  agreement"  must  be  in  writing;  but  generally,  in  this 
country,  the  writing  need  not  contain  or  express  the  considera- 
tion, which  may  be  proved  otherwise.  Nor  need  it  be  all  ors 
one  piece  of  paper.  For  it  is  sufficient  if  on  several  pieces,  as 
in  several  letters,  which,  however,  relate  to  one  and  the  sam.a 
business,  and  may  fairly  be  read  together  as  the  statement  ot 
one  transaction.  But  it  must  appear  from  the  papers  that  they 
are  so  connected. 

The  "signature"  may  be  in  any  part  of  the  paper, — the 
beginning,  middle,  or  end,  except  in  those  of  our  States  in  which 
ihe  statute  has  the  word  "subscribed"  instead  of  "signed;" 
in  which  case  it  should  be  in  the  usual  place  at  the  bottom.  If 
':he  name  and  the  agreement  be  printed,  it  is  sufficient ;  hence, 
a.  printed  shop-bill,  with  the  name  of  the  seller,  as  usual,  at 
the  beginning,  if  delivered  to  the  buyer,  is  generally  sufficient 
to  charge  the  seller  in  an  action  for  refusing  to  deliver  the 
goods. 

Shares  in  railroad  companies,  in  manufacturing  companies, 
and,  generally,  in  all  corporations  and  joint-stock  companies,  are 
"goods,  wares,  or  merchandises,"  within  the  meaning  of  the  stat- 
ute, in  this  country,  and  an  agreement  for  their  purchase  and  sale 
must  therefore  be  in  writing. 

It  may  be  further  remarked,  that  the  operation  of  the  statute 
has  been  always  limited  to  such  contracts  as  have  not  been 
executed  in  any  substantial  part,  and  therefore  remain  wholly 
executory.  For  if  they  had  been  executed  substantially  in  good 
part,  they  are  binding,  although  only  oral. 

In  Massachusetts,  the  Statute  of  Frauds  also  provides  (3d 
section)  that  no  action  shall  be  brought  to  charge  any  person 
upon,  or  by  reason  of,  any  representation  or  assurance  made 
concerning  the  character,  conduct,  credit,  ability,  trade,  or  deal- 
mgs  of  any  other  person,  unless  it  be  made  in  writing,  and 
signed  by  the  party  to  be  charged.  And  there  are  provisions 
substantially  similar  to  this  in  the  statutes  of  Maine  and  Ver- 
mont. 


HO IV  PA  YMENT  MA  Y  BE  MADE.  i^y 

Instead  of  the  ";^io"  in  the  seventeenth  section  of  the 
English  Statute,  the  sum  mentioned  in  the  Statutes  of  Frauds 
of  the  different  States,  is,  generally,  from  thirty  to  fifty  dollars. 


CHAPTER  XIV. 

PAYMENT  AND  TENDER. 


SECTION  I. 

HOW   PAYMENT   MAY    BE   MADE. 

The  obligations  which  arise  out  of  most  mercantile  contracts 
are  to  be  satisfied  by  payment  of  money.  The  parties  may 
always  agree  to  any  specific  manner  of  payment,  and  then  that 
becomes  obligatory  on  the  creditor  as  well  as  the  debtor.  As, 
by  deducting  the  amount  to  be  paid  from  a  debt  due  to  the 
debtor  either  from  the  creditor  or  from  any  one  else.  Or  the 
amount  may  be  made,  by  agreement,  payable  by  a  bill  or 
note.  If  the  debt  is  to  be  paid  by  a  bill,  it  must  be  such  a  bill 
as  is  agreed  upon,  and  this  must  be  tendered  by  the  debtor. 
But  the  word  "bill"  does  not  necessarily  mean  an  "approved 
bill ;"  and  if  this  phrase  be  itself  used,  it  means  only  a  bill  to 
which  there  is  no  reasonable  objection  ;  that  is,  one  which  ought 
to  be  approved. 

In  the  absence  of  any  especial  agreement,  the  only  payment 
known  to  the  law  is  by  cash,  which  the  debtor  must  pay  when 
it  is  due,  or  tender  to  the  creditor. 

The  tender  should,  properly,  be  in  cash,  or  in  bills  made  a 
legal  tender  by  law,  and  must  be  so  if  that  is  required ;  but  a 
tender  in  good  and  current  bank-bills  is  sufficient,  unless  it  be 
objected  to  because  they  are  not  money. 

Generally,  if  the  tender  be  refused  for  any  express  and 
specific  reason,  the  creditor  cannot  afterwards  take  advantage 
of  any  informality,  to  which  he  did  not  object  at  the  time  of  the 
tender. 

The  tender  may  be  of  a  larger  sum  than  is  due.     But  a  tender 


148 


FA  VMEXT  AND  TENDER. 


of  a  larger  sum,  if  made  with  a  requirement  of  change  or  of  the 
balance,  is  not  good.  Nor  must  it  be  accompanied  with  a 
demand  or  condition  that  any  instrument  or  document  shall  be 
delivered ;  nor  that  the  sum  tendered  shall  be  received  as  all 
that  is  due ;  nor  that  a  receipt  in  full  shall  be  given.  But  a 
simple  receipt  for  so  much  money  paid  may  be  demanded.  We 
have  already  seen  that,  if  a  receipt  be  given,  it  is  only  strong 
evidence  of  payment,  but  not  conclusive.  And  even  if  it  be 
"in  full  of  all  demands,"  it  is  still  open  to  explanation  or  denial 
by  evidence. 

A  lawful  tender,  and  payment  of  the  money  into  court,  is  a 
good  defense  to  an  action  for  the  debt.  But  the  creditor  may 
break  down  this  defense  by  proving  that,  subsequently  to  the 
tender,  he  demanded  the  money  of  the  debtor,  and  the  debtor 
refused  to  give  it. 

If  the  buyer  or  debtor  give,  and  the  seller  or  creditor  receive, 
a  negotiable  note  or  bill  for  the  sum  due,  this  is  not  anywhere 
absolute  and  conclusive  payment.  In  Maine  and  in  Massachu- 
setts the  law  presumes  that  such  note  or  bill  is  payment  of  the 
debt,  unless  a  contrary  intention  is  shown.  In  nearly  all  the 
States  of  this  Union  but  those  two,  and  in  the  Supreme  Court 
of  the  United  States,  it  is  not  payment,  unless  the  intention  of 
the  parties  that  it  should  be  so  is  shown.  In  New  York,  it  has 
been  held  that  the  debtor's  own  promissory  note  is  nOt  payment, 
even  if  it  be  intended  or  expressly  agreed  that  it  should  be.  If 
a  creditor,  who  receives  from  his  debtor  any  bill  or  note,  nego- 
tiates or  sells  it  for  value  to  a  third  party,  without  makin<r 
himself  liable,  the  bill  or  note  was  payment,  although  it  be  dis- 
honored, because  it  has  been  good  to  the  debtor,  and  he  has 
received  the  avails  of  it ;  and  if  the  law  did  not  hold  that  the  bill 
had  paid  the  debt,  he  could  sue  the  original  debt,  and  then  he 
would  have  the  value  of  the  bill,  or  payment,  twice.  Not  so, 
however,  if  he  negotiates  it  in  such  a  way  that  he  is  himself 
liable  upon  it ;  for  if  he  pays  it,  he  loses  what  he  sold  it  for, 
unless  he  can  recover  his  debt  from  his  debtor. 


AP PROPRIA  TION  OF  PA  YMENT. 


SECTIOxN    II. 


149 


APPROPRIATION    OF    PAYMENT. 

If  one  who  owes  several  debts  to  his  creditor  makes  to  him 
i  general  payment,  it  may  be  an  important  question  to  which 
of  those  debts  this  payment  shall  be  appropriated ;  for  some  of 
them  may  be  secured,  and  others  not,  or  some  of  them  may 
carry  interest,  and  others  not,  or  some  of  them  be  barred  by 
the  Statute  of  Limitations,  and  others  not. 

There  is  no  doubt  that  the  payor  may  appropriate  his  pay- 
ment, at  the  time  of  the  payment,  at  his  own  pleasure.  And  if 
he  does  not  exercise  this  right,  the  receiver  may,  at  the  time  of 
l^ayment,  make  the  appropriation.  But  if  neither  party  does 
*liis  at  that  time,  and  at  a  future  period  the  question  comes  up 
z  >  to  which  party  may  then  make  the  appropriation,  or  rather, 
how  the  law  will  then  appropriate  the  payment,  it  is  then  the 
better  and  prevailing  rule,  that,  if  the  court  can  ascertain, 
either  from  the  words  used,  or  from  the  circumstances  of  the 
case,  or  from  any  usage,  what  was  the  intention  and  under- 
standing of  the  parties  at  the  time  of  the  payment,  that  inten- 
tion will  be  carried  into  effect.  And  if  this  cannot  be  ascertained, 
then  the  court  will  direct  such  appropriation  of  the  payment  as 
will  best  protect  the  rights  and  interests  of  both  parties,  and 
do  justice  between  them.  And  one  reason  for  this  conclusion 
would  be,  that  the  law  would  presume  that  this  was  the  original 
intention  of  the  parties.  A  very  general  rule,  which  would 
indeed  be  always  adopted  in  the  absence  of  especial  reason  to 
the  contrary,  is,  to  apply  the  payment  first  to  the  oldest  debt, 
until  that  is  satisfied,  and  then  go  on  applying  the  payment  to 
the  other  debts  in  the  order  of  their  age. 

If  A  owes  a  debt  to  B,  on  B's  own  account,  and  another 
debt  to  B  as  trustee  for  somebody,  and  A  pays  B  a  sum  of 
money  without  appropriating  it,  B  cannot  apply  it  all  to  the 
debt,  due  him  on  his  own  account  ;  but  must  divide  it  between 
that  debt  and  the  debt  due  to  him  as  trustee,  in  proportion  to 
their  respective  amounts.  Because  it  is  his  duty  as  trustee  to 
take  as  good  care  of  the  debts  due  to  him  for  another,  as  of 
those  due  to  him  on  his  own  account. 


I^O  •     RECEIPTS  AND  RELEASES. 

We  have  spoken  of  a  "bill  or  note;"  and  notes  are  some- 
times called  bills ;  so  bank-notes  are  often  called  bank-bills. 
But  the  legal  meaning  of  "bill"  is  always  a  draft  or  order  ow 
somebody  to  pay  money.  A  note  is  a  promise  to  pay.  See 
chapter  on  notes  and  bills. 


CHAPTER  XV. 

RECEIPTS  AND  RELEASES. 

A  RECEIPT  is  only  an  acknowledgment  that  a  sum  of  money 
has  been  paid.  It  may  be  in  one  word,  as  when,  under  a  bill  of 
parcels,  the  seller  writes  the  word  "  paid,"  and  signs  it.  More 
commonly  the  words  are,  "Received  Payment."  Formerly  it 
was  usual  to  add  the  words  "  Errors  Excepted."  Then  it  grew 
customary  to  write  the  initial  letters  "  E.  E."  instead  of  the 
words  ;  but  all  this  is  unnecessary.  If  there  be  an  error  in  the 
receipt,  or  in  the  paper  receipted,  the  law  permits  the  partj 
injured  by  it  to  explain  and  correct  the  error,  although  there  be 
no  express  reservation  or  exception  of  errors. 

Receipts  are  of  all  degrees  of  fulness,  from  the  single  word 
"paid,"  to  those  which  relate  the   particulars  for  which   thf. 
receipt  is  given,  and  the  manner  in  which  the  money  was  paid 
or  the  thing  delivered.     I  give  the  following  forms : 

(45.) 

{Date)     Received  from , 


dollars. 


{Signature.) 


(46.) 


(Date)     This  day  I  have  received  from     . 
,    , dollars,  on  account  of 


(47.) 


{Signature.) 


(Date)     This  day  the  following  {papers,  or  other  articles,  enumerating 
and  describing  them)  were  delivered  to  me  by  ,  {add,  oh  account 

of,  or  hi  execution  of  the  promise  or  bargain,  describijig  it ;  atid,  if  they  are 
delivered  for  any  particular  purpose,  describe  that),  and  I  hereby  acknowl- 
edge the  receipt  of  them. 

(Signatured 


FORMS  OF  RELEASES.  1 5  r 

Every  receipt  is  open  to  evidence,  not  only  to  explain  it, 
but  to  contradict  it.  Herein  releases  differ  from  receipts.  A 
release  gives  up  some  right  or  claim  which  the  releasor  had 
against  the  releasee.  It  is  in  the  nature  of  a  contract,  and 
therefore  cannot  be  controlled  or  contradicted  by  evidence, 
unless  on  the  ground  of  fraud.  But  if  its  words  are  ambiguous, 
or  may  have  either  of  two  or  more  meanings,  evidence  is 
receivable  to  determine  the  meaning. 

Like  every  other  contract,  it  requires  a  consideration,  and 
is  of  no  force  without  one.  But  here  comes  in  the  rule  of  law 
as  to  a  seal.  The  general  rule  is,  as  has  been  stated  before,  a 
seal  implies,  or  is  the  same  as,  the  assertion  of  a  consideration  ; 
and  .therefore  it  is  always  customary  to  put  a  seal  to  a  release. 
But  a  release,  even  with  a  seal,  if  it  can  be  shown  to  have  been 
given  without  any  consideration  whatever,  can  be  set  aside.  It 
is  always  best  to  state  in  the  release  itself  that  it  was  given  for 
a  consideration,  and  what  the  consideration  is.  A  releas(; 
properly  drawn,  and  duly  signed  and  sealed,  is  a  complete 
defence  to  an  action  grounded  on  any  of  the  debts  or  claims 
released. 

The  following  forms  are  for  releases  of  various  kinds  : 

(48.) 
A  General  Release. 

Know  all  Men  by  these  Presents,  That  I,  {Ihe  itame  of  the  release.') 
of  for  and  in  consideration  of  the  sum  of 

,  to  me  paid  by  of  , 

have  remised,  released,  and  forever  discharged,  and  by  these  presents  do, 
for  me,  my  heirs,  executors,  and  administrators,  rem.ise,  release,  and  forever 
discharge  the  said  his  heirs,  executors,  and  administrators, 

of  and  from  all  and  all  manner  of  action  and  actions,  cause  and  causes  of 
action,  suits,  debts,  dues,  sum  and  sums  of  money,  accounts,  reckonings, 
bonds,  bills,  specialties,  covenants,  contracts,  controversies,  agreements 
promises,  variances,  damages,  judgments,  extents,  executions,  claims,  and 
demands  whatsoever,  in  law  and  inequity,  which  against  the  said 
I  ever  had,  now  have,  or  which  I,  my  executors  or  administrators  hereafter 
can,  shall,  or  may  have,  for,  upon,  or  by  reason  of,  any  matter,  cause,  or 
thing  whatsoever,  from  the  beginning  of  the  world  to  the  day  of  Xh»  date  of 
these  presents. 

In  Witness  Whereof,  &c. 


152 


RECEIPTS  AND  RELEASES. 


(49.) 
A  Mutual  General  Release  by  Indenture. 
This  Indenture,  Made  between  of 

and  of  ,  witnesseth,  that  the  said 

doth,  by  these  presents  remise,  release,  and  forever  quit  claim,  unto  the  said 
,  all  and  all  manner  of  actions,  {as  befoi'e  );  and  this 

indenture  further  witnesseth,  that  the  said  by  these  presents, 

doth  remise,  release,  and  forever  quit  claim,  unto  the  said 
all  and  all  manner  of  actions  {as  before). 
In  Witness  Whereof,  &c. 

(50.) 
A  Release  from  Creditors  to  a  Debtor,  under  a  Composition. 

To  all  Persons  to  whom,  these  Presents  may  come,  we  who  have  here- 
unto set  our  hands  and  seals,  creditors  of  of  ,  send 
greeting.  Whereas  the  said  is  indebted  to  us  his  said 
creditors,  in  several  sums  of  money,  vi^hich  he  is  not  able  fully  to  satisfy  and 
i^ischarge;  we  therefore  have  agreed,  and  do  hereby  agree,  to  accept  of  the 
i'lm  of  in  full  payment  and  satisfaction  of  all  the  debts, 
(I  (ving  to  us  respectively  at  the  date  hereof,  by  and  from  the  said 
which  is  paid  by  or  for  the  said  {the  nmne  of  the  debtor)  to  {the  iiames  of  the 
-persons  to  tuJioii!  the  7noney  is  to  be  paid  for  the  creditors  releasi7ig)*  and 
assignees  by  virtue  of  a  com/nissioji,  of  bankrupt  awarded  a<^ainst  the  said 
,  for  the  use  of,  and  to  the  intent  that  the  same  may  be 
i.hared  and  divided  amongst  us  his  said  creditors,  seeking^  relief  tinder  the 
said  commission^  in  proportion  and  according  to  the  debts  to  us  severally 
clue  and  owing  :  Now  therefore  know  ye,  that  for  the  consideration  aforesaid, 
each  of  us,  the  said  creditors  who  have  hereunto  set  our  hands  and  seals, 
for  him  and  herself,  his  and  her  heirs,  executors,  and  copartners,  doth  by 
these  presents,  remise,  release,  and  forever  discharge  the  said 

his  heirs,  executors,  and  administrators,   of  and  from  our 
said  several  debts,  and  all  and  all  manner  of  action  and  actions 

which  against  the  said  ,  each  and 

every  of  us  the  said  creditors  now  hath,  or  which  each  and  every  of  our 
heirs,  executors,  or  administrators,  respectively,  hereafter  may.  can,  or 
ought  to  have,  claim,  or  demand  for,  upon,  or  by  reason  of  the  said  several 
and  respective  debts  to  us  severally  due  and  owing,  or  for  or  by  reason 
of  any  other  matter,  cause,  or  thing  whatsoever  from  the  beginning  of  the 
world. 

In  Witness  Whereof,  &c. 

(51.) 
A  Release  of  all  Legacies. 

Know  all  Men  by  these  Presents,  That  I 
of  widow,  have  remised,  released,  and  forever  quit-claimed, 

*  The  vtox^  following  in  Italic  may  be  omitted  according  to  circumstances. 


FORMS  OF  RF LEASES. 


153 


and  by  these  presents  do  for  me  unto  of 

,  gentleman,  executor  of  the  last  will  and  testament  of 

late  of  ,  deceased,  and  to  the  heirs,  executors, 

and  administrators  of  the  said  ,  all  legacies,  gifts, 

bequests,  sum  and  sums  of  money  and  demands  whatsoever,  bequeathed 
and  given  unto  me  the  said  ,  in  and  by  the  last  will 

and  testament  of  ,  deceased,  and  all  manner  of  actions 

and  suits,  sum  and  sums  of  money,  debts,  duties,  reckonings,  accounts,  and 
demands  whatsoever,  which  I  the  said  ever 

had,  now  liave,  or  that  I,  my  executors  or  administrators,  can  or  may,  at  any 
time  or  limes  hereafter,  have,  challenge,  or  demand  against  the  said 

his  executors,  administrators,  or  assigns,  for  or  by  reason  of  any  mat- 
ter, cause,  or  thing  whatsoever,  from  the  beginning  of  the  world  until  the  day 
of  the  date  hereof. 

In  Witness  Whereof,  etc. 

(52.) 
A  Release  of  a  Bond,  it  being  Lost. 

To  all  to  wlioni  these  Presents  may  come,    {name  of  releaser)  sendeth 
greeting.     Whereas  by  his  bond  or  oblioation,  bearing  date 

{recite the  bond),  as  by  the  said  bond  or  obligadon,  and  the  condition 
thereof  may  appear  :     And  whereas  the  sum  of 

mentioned  in  the  said  bond,  with  all  the  interest  for  the  same,  is  paid  and 
satisfied  unto  me  the  said  .  in  full  discharge  for  the  said  bond  or 

obligation  :  And  w-hereas  the  said  bond  or  obligation  is  lost,  or  at  present 
mislaid,  so  that  it  cannot  be  found  to  be  delivered  up  to  the  said  , 

to  be  cancelled  :     Now  know  ye,  that  I  the  said 

for  the  consideration  aforesaid,  have  remised,  released,  and  quitclaimed,  and 
by  these  presents  do,  for  me,  my  executors  and  administrators,  remise 

unto  the  said  his  heirs,  executors,  and 

administrators,  as  well  the  said  recited  bond  or  obligation,  as  all  such  sums 
of  money  as  therein  are  mentioned  to  be  due  and  payable,  unto  me  the  said 

my  executors,  administrators,  or  assigns  ; 
and  also  all  actions,  suits,  cause  and  causes  of  action,  accounts,  debts,  reck- 
onings, sums  of  money,  judgments,  executions,  and  demands  whatsoever, 
which  I,  the  said  ever  had,  now  have,  or  that  1,  my 

executors,  administrators,  or  assigns,  or  any  of  us,  can  or  may  have,  for  or 
against  the  said  his  executors  or  administratois, 

f  :)r,  or  by  reason  of,  the  said  recited  bond  or  obligation,  or  any  other  matter, 
c-iuse.  or  thing  whatsoever,  concerning  the  same,  from  the  beginning  of  the 
world  to  the  day  of  the  date  hereof. 

In  Witness  Whereof,  1  the  said  have  hereunto  set 

ni)  hand  and  seal  this  day  of 

{Signatures.)    {Seals.) 
In  Presence  cf 


154 


RECEIPTS  AND  RELEASES. 


(  The  following  covenmit  may  be  inserted  before  "  In  wilness.") 

And  I,  the  said  for  me  my  executors  , 

do  covenant  ,  to  and  with  the  said  ,  his 

that  if  I  the  said  ,  my  executors, 

,  or  any  of  us,  at  any  time  hereafter,  do  find  or  can  obtain  the 
said  recited  bond  or  obligation,  then  I,  the  said  , 

my  executors  ,  or  some  of  us,  shall  and  will,  within 

two  months  next  after  the  said  obligation  shall  be  found  as  aforesaid,  deliver 
pr  cause  to  be  delivered,  the  said  bond  or  obligation,  unto  the  said 

his 

(53.) 
A  Release  of  a  Judgment. 

This  Indenture,  Made  tlie  day  of 

in  the  year  one  thousand  eight  hundred  and  between 

of  the  second  part. 

Whereas,  Judgment  was  rendered  on  the  day  of 

in  the  year  one  thousand  eight  hundred  and  in  an  action  in 

the  between  plaintiff     and 

defendant     in  favor  of  the  said  against  the  said 

for  the  sum  of  as  appears  by  the 

Now  this  Indenture  "Witnesseth.  That  the  said  part  of  the  first 

part,  in  consideration  of  the  sum  of  to  duly  paid 

at  the  time  of  the  sealing  and  delivery  of  these  presents,  the  receipt  whereof 
is  hereby  acknowledged,  ha  granted,  released,  discharged  and  set  over, 
and  by  these  presents  do  grant,  release,  discharge  and  set  over,  unto  the 
said  part        of  the  second  part,  t'le  following  described  premises,  to  wit : 

Together  with  the  hereditaments  and  appurtenances  thereto  belonging  ; 
and  all  the  right,  title  and  interest  of  the  said  part  of  the  tir.-t  part,  of,  in 
and  to  the  same  to  the  intent  that  the  lands  hereby  conveyed  may  be 
released  and  discharged  from  the  said  above-mentioned  judgment,  and  from 
all  lien  or  incumbrance  that  has  attached  to  the  same,  by  reason  of  the  recovery 
of  the  said  judgment,  as  free  and  clear  in  all  respects  as  though  said  judg- 
ment had  not  been  rendered.  To  have  and  to  hold,  the  lands  and  premises 
hereby  released  and  conveyed,  to  the  said  part         of  the  second  part 

heirs  and  assigns,  to  their  only  proper  use,  benefit 

and  behoof  forever,  free,  clear  and  discharged  of  and  from  all  lien  and  claim, 
under  and  by  virtue  of  the  judgment  aforesaid. 

In  Witness  Whereof,  The  said  part  of  the  first  part  ha  hereunto 
«et  hand      and  seal     the  day  and  year  first  above  written. 

{Signatures.)  {Seals) 

In  Presence  of 


FORMS  OF  RELEASES. 


155 


(54.) 
A  Release  of  a  Condition. 

Know  all  Men  by  these  Presents,   That  I,  of 

,  for  divers  good  considerations  me  hereunto  moving, 
have  remised,  released,  and  quit-claimed,  and  by  these  presents,  for  me,  my 
executors,  administrators,  and  assigns,  do  unto 

of  ,  his  heirs,  executors,  administrators,  and  assigns,  as 

well  one  proviso  or  condition,  and  all  and  every  the  sum  and  sums  of  money, 
specified  in  the  same  proviso  or  condition,  contained  or  comprised  in  one 
pair  of  indentures  of  bearing  date  1 

made  between  me,  the  said  of  the 

one  part,  and  the  said  of  the  other  part,  and 

also  all  and  all  manner  of  actions  and  suits,  cause  and  causes  of  actions  and 
suits,  for  or  concerning  the  said  proviso  or  condition. 

In  Witness  Whereof,  I  the  said  have  hereunto  set  my 

hand  and  seal  this  day  of 

{Signaiure.)     {Seal.) 
In  Presence  of 

(55.) 

A  Release  of  a  Covenant  contained  in  an  Indenture  of 

Lease. 

To  all  Persons  to  whom  these  Presents  may  come,  {na7)tc  of  releasee) 
sendeth  greeting.     Whereas  in  and  by  an  indenture  of  lease,  bearing  date 
made  between  ,  of  the  one  part,  and  the  said 

of  the  other  part,  there  is  contained  a  covenant  in  these  words 
following,  viz.  {recite  the  covenant  I'erbathn,  as  the/'ein  contained )  whereuntD 
relation  being  had,  it  doth  at  large  appear:     Now  know  ye,  that  I,  the  said 

,  for  divers  good  causes  and  considerations,  m^e 
hereunto  moving,  have  remised,  released,  and  quit-claimed,  and  by  these 
presents  for  me  do  unto  the  said 

,  his  the  said  covenant, 

grant,  clause,  agreement,  and  article,  before  rehearsed  or  recited,  and  all  and 
every  other  matter,  thing  and  things  specified,  declared,  and  contained  in 
the  same  covenant,  clause,  and  agreement,  and  all  the  benefit,  profit,  advan- 
tage, and  commodity,  that  by  any  manner  of  means,  may  or  might  arise, 
grow,  come,  or  happen  to  me  the  said  ,  for  or  by  reason 

of  the  same  covenant,  clause,  article,  or  agreement,  or  any  word,  sentence 
matter,  thing,  or  things  therein  contained,  so  that  the  said 
his  executors  and  assigns,  and  every  of  them,  from  hencefortli  forever,  slial! 
be  fully  acquitted,  released,  and  discharged  against  me  the  said 

my  executors  and  administrators,  and  every  of  us,  of,  from, 
and  for  the  said  covenant,  grant,  clause,  article,  and  agreement  before 
rehearsed  or  recited,  and  of,  from,  and  for,  everything  and  tilings,  touching 
the  same  (but  this  present  release  shall  not  in  anywise  extend  to  any  othei 
covenant,  clause,  or  article  in  the  said  indenture  contained). 


156 


RECEIPTS  AND  RELEASES. 


In  Witness  "Whereof,  I  the  said  have  hereunto  set  my 

hand  and  seal  this  day  of 

{Signature,)     {Seal.) 
In  Presence  of 

(56.) 

A  Release  in  Extinguishment  of  a  Power. 

To  all  Persons  to  whom  these  Presents  may  come,  Now  know  ye, 
that  I,  the  said  ,  pursuant  to  the  said  agreement,  and  for 

divers  good  causes  and  considerations  me  hereunto  moving,  have  released, 
extinguished,  and  discharged,  and  by  these  presents  do  fully  and  absolutely 
release,  extinguish,  and  discharge,  the  said  recited  powerfor  raising  the  said 
sum  of  as  aforesaid,  and  all  the  lands 

therein  comprised,  or  subject  thereto,  so  that  I,  the  said 
shall  not,  nor  will,  at  any  time  or  times  hereafter,  raise  the  same,  or  any  part 
thereof,  or  hereafter  charge  the  said  lands  with  the 

fi'ayment  thereof,  or  any  part  thereof. 

In  "Witness  "Whereof,  I  the  said  have  hereunto  set 

t\,\y  hand  and  seal,  this  day  of 

{Signaiure.)      {Seal.) 
In  Presence  of 

(57.) 
A  Release  from  a  Lessor  to  a  Lessee  (upon  his  surrendering 
his  Lease)  from  the  Covenants  therein. 
To  all  Persons  to  whom  these  Presents  may  come,  {name  of  releaser) 
sends  greeting  :     Whereas  the  said  by  his  indenture  of  lease, 

bearing  date  did  demise  unto 

a  messuage  in  at  a  certain  rent,  for  a  cer- 

tain term  of  years,  of  which  about  years  are  yet  to  come 

and  undetermined,  in  which  said  lease  are  contained  covenants  fur  repairing 
the  said  premises,  apd  other  covenants,  on  the  part  of  the  said 
to  be  performed.     And  whereas,  by  agreement  between  the  said 

and  the  said 

hath  delivered  up  the  said  recited  lease,  and  surrendered  the  same,  and  all 
his  interest  and  term  in  and  to  the  said  house  and  premises  :  Now  therefore 
know  ye,  that  the  said  ,  in  consideration  thereof,  doth 

hereby,  for  himself,  his  heirs,  executors,  and  administrators,  remise,  release, 
and  forever  discharge  the  said  his  executors  and  admin- 

istrators, of  and  from  all  and  every  the  covenants  and  agreements,  in  the  said 
recited  lease  contained,  by  and  on  the  part  and  behalf  of  the  said 

his  to  be  done  and  performed,  and  from  all  actions, 

suits,  costs,  charges,  payments,  damages,  claims,  and  demands  whatsoever 
in  law  and  equity,  for  or  concerning  the  same  in  any  manner  of  wise. 

In  "Witness  "Whereof,  I  the  said  have  hereunto  set  my 

hand  and  seal  this  day  of 

{Sigfiatitre.)     {Seal.) 
In  Presence  of 


FORMS  OF  RELEASES. 


157 


(58.) 
A  G-eneral  Release  of  Do-wer. 

To  all  to  whom  these  Presents  shall  come,  {name  of  releaser^ 

send  greeting:  Know  ye,  that  the  said  the 

party  of  the  first  part  to  these  presents,  for  and  in  consideration  of  the  sum 
of  lawful  money  of  the  United  States,  to  her  in  hand  paid  at 

or  before  the  ensealing  and  deh'very  of  these  presents,  by  of 

the  second  part,  the  receipt  whereof  is  hereby  acknowledged,  hath  granted, 
remised,  released,  and  forever  quit-claimed,  and  by  these  presents  doth 
grant,  remise,  release,  and  forever  quit-claim,  unto  the  said  party  of  the 
second  part,  heirs  and  assigns  forever,  all  the  dower  and  tl;?rds,  right 

and  title  of  dower  and  thirds,  and  all  other  right,  title,  interest,  property, 
claim  and  demand  whatsoever,  in  law  and  equity,  of  her,  the  said  party  of  the 
first  part,  of,  in,  and  to  (Iiere  desc7-ibe  tJie  estate  the  doiver  in  which  is  released) 

so  that  she,  the  said 
party  of  the  first  part,  her  heirs,  executors,  administrators  or  assigns,  nor 
any  other  person  or  persons,  for  her,  them,  or  any  of  them,  shall  not  have, 
claim,  challenge,  or  demand,  or  pretend  to  have,  claim,  challenge,  or  demand, 
any  dower  or  thirds,  or  any  other  right,  title,  claim,  or  demand  whatsoever, 
of,  in,  or  to  the  same,  or  any  part  or  parcel  thereof,  in  whosesoever  hands, 
seisin,  or  possession,  the  same  may  or  can  be,  and  thereof  and  therefrom  shall 
be  utterly  barred  and  excluded  forever  by  these  presents. 

In  Witness  "Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

{Signature.)    {Seal.) 

In  Presence  of 

(59.) 

A  Release  of  Dower  to  the  Heir. 
Know  all  Men  by  these  Presents,  That  I  relict  oC 

late  ,  as  well  for  and  in  consideration 

of  to  me  paid,  at  or  before  ,  by  my  son 

,  the  receipt  whereof  I  do  hereby  acknowledge,  and  for 
the  love  and  affection  which  I  have  to  my  said  son,  have  granted,  remised, 
released,  and  forever  quit-claimed,  and  by  these  presents  do 
unto  the  said  his  heirs  and  assigns  forever,  all  the  dower 

and  thirds,  right  and  title  of  dower  and  thirds,  and  all  other  right,  title,  inter- 
est, property  claim,  and  demand  whatsoever,  in  law  and  in  equity,  of  me  the 
said  of,  in,  and  to  {a  description  of  the  parcel  of  la?id  in  which 

dower  is  released)  so  that  neither  I,  the  said  my  heirs, 

executors,  or  administrators,  nor  any  other  person  or  persons  for  me,  them, 
or  any  of  them,  shall  have,  claim,  challenge,  or  demand,  or  pretend  to  have 
any  dower  or  thirds,  or  any  other  right  to  claim  or  demand 
of,  in,  or  to  the  said  premises,  but  thereof  and  therefrom,  shall  be  utterly 
debarred  and  excluded,  forever,  by  these  presents. 


158  RECEIPTS  AND  RELEASES. 

In  Witness  Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Signature^    {Seal.) 
In  Presence  of 

(60.) 

A  Release  of  Dower  in  Consideration  of  an  Annuity  given 

by  Will. 

To  all  Persons  to  whom  these  Presents  may  come,  {name  of  releaser) 
widow,  reh'ct  and  residuary  legatee  of  late  of  ,  deceased, 

sendeth  greeting.     Whereas  the  said  ,  in  and  by  his  last 

will  and  testament,  duly  signed,  sealed,  published,  and  declared  in  my  pres- 
ence and  with  my  approbation,  bearing  date  ,  did  settle 
and  secure  unto  and  upon  me  the  said  ,  an  annuity  of 
to  be  paid  unto  me  half-yearly,  by  equal  payments,  in 
lieu  and  full  satisfaction  of  the  dower  or  thirds  at  common  law,  which  I 
might  otherwise  have,  claim,  or  be  entitled  unto,  out  of  all  and  every  the 
Imds,  tenements,  and  hereditaments  whatsoever,  of  my  said  late  husband, 
deceased,  or  of,  in,  to,  or  out  of  the  reversion  or  remainder,  rents,  issues, 
a  nd  profits  thereof :  Now  know  ye,  that  I  the  said 

fi)r  and  in  consideration  of  the  said  annuity  so  secured  to  me  as  aforesaid, 
and  in  pursuance  and  part  performance  of  the  said  last  will  and  testament  of 
my  said  late  husband,  do  hereby  declare  myself  fully  satisfied  and  con. 
tented  therewith,  and  do  hereby  remise,  release,  and  forever  quit-claim  unto 
of  ,  and  of  ,  trustees, 

appointed  in  and  by  the  said  last  will  and  testament  of  my  said  late  husband 
(in  their  actual  possession  and  seisin  now  being)  their  executors 
all  and  all  manner  of  dower  in  and  to  the  said  premises,  but  thereof  and 
therefrom,  shall  be  utterly  debarred  and  excluded,  forever,  by  these  presents. 

In  Witness  Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

{Signature^    {Seal.) 

In  Presence  of 

(61.) 

A  Release  of  Dower  where  the  Husband  of  the  "Widow  joins 
in  the  Deed.    MSS. 

Know  all  Men  by  these  Presents,  That  {name  of  husband)  of 

and  {name  of  wrfe)  his  wife,  in  her  right,  in 

consideration  of  paid  them  by  of 

the  receipt  whereof  they  hereby  acknowledge,  have  granted,  remised,  released, 
and  forever  quit-claimed,  and  by  these  presents  do  unto 

the  said  his  heirs  and  assigns  forever,  all  the  right 

which  the  said  hath  to  dower  or  thirds,  of  and  in  (/ier< 


FORMS  OF  RELEASES.  I  59 

describe  Ihc  estate)\<\\txQoi  lier  late  husband     {name  of  former  hnsbancf)  late- 
died  seized,  situate,  ,  which  she  claims  as  of  the 
endowment  of  the  said                                       deceased,  and  all  the  right,  title, 
interest,  and  claim  whatsoever,  which  the  said  and 
have,  or  either  of  them  hath,  or  by  law  might  have,  of,  in,  and  to  the  same 

:  To  have  and  to  hold  the  same  to  the  said 
and  his  heirs  and  assigns  forever;  and  the  said  and 

for  themselves,  their  heirs,  executors,  and  administrators, 
do  hereby  covenant  with  the  said  and  his  heirs  and  assigns, 

that  he  and  they  shall  henceforth  forever,  have  and  quietly  enjoj- the  released 
premises,  without  any  claim  or  demand  had  or  made,  or  to  be  had  or  made 
by  them,  or  any  persons,  claiming,  or  who  may  claim  the  same  or  any  part 
thereof,  by,  from,  or  under  them  or  their  heirs. 

In  Witness  "Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

{Signature^    {Seal.) 
In  Presence  of 

(62.) 

A  Release  of  a  Trust. 

To  all  to  whom  these  Presents  may  come,  {name  of  releaser)  sendeth 
greeting.     Whereas,  by  indenture  bearing  date  ,  made  between 

{here  recite  the  deed)  in  which  said  indenture  the  said 
doth  hereby  declare,  that  his  name  was  only  used  in 
trust,  for  the  benefit  and  behoof  of  of  : 

Now  know  ye,  that  I,  the  said  ,  in  discharge  of  the  trust 

reposed  in  me,  at  the  request  of  the  said  ,  have  remised, 

released,  and  surrendered,  assigned,  and  set  over,  and  by  these  presents,  for 
me,  my  executors  and  administrators,  do  freely  and  absolutely  remise, 

unto  the  said  his  executors 

all  the  estate,  right,  title,  interest,  use,  benefit,  privilege,  and  demand  what- 
soever, which  I  the  said  have,  or  may  have  or  claim,  ofj 
or  to  the  said  premises,  or  of  and  in  any  sum  of  money,  or  other  matter  or 
thing  whatsoever,  in  the  said  indenture  contained,  mentioned,  and  expressed, 
so  that  neither  I  the  said  my  executors  or  administrators, 
or  any  of  us,  at  any  time  hereafter,  shall  or  will  ask,  claim,  challenge,  or 
demand  any  interest  or  other  thing,  in  any  manner  whatsoever, 
by  reason  or  means  of  the  said  indenture,  or  any  covenant  therein  contained, 
but  thereof  and  therefrom,  and  from  all  actions,  suits,  and  demands,  which  I, 
my  executors,  administrators,  or  assigns,  may  have  concerning  the  same, 
shall  be  utterly  excluded  and  forever  debarred,  by  these  presents. 

In  Witness  Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

{Signature.)    {Seal.) 

In  Presence  of 


l6o  RECEIPTS  AND  RELEASES. 

(63.) 
A  Release  of  Right  to  Lands, 

Enow  all  Men  by  these  Presents,  That  I  {ttame  of  releaser)  <  f 

,  in  consideration  of  to  me  paid  by 

{itame  of  releasee)  the  receipt  ,  have  remised,  released, 

and  forever  quit-claimed,  and  by  these  presents  do  unto 

the  said  and  his  heirs,  all  the  estate,  right,  title,  interest, 

use,  trust,  claim,  and  demand  whatsoever,  both  at  law  and  in  equity,  which  I 
the  said  have,  of,  in,  to,  or  out  of,  all  and  singular  the 

following  described  parcel  of  land  {here  describe  the  land)  so  that  neither  I 
the  said  ,  my  heirs  or  assigns,  or  any  other  person  or 

persons  in  trust  forme  or  them,  or  in  my  or  their  name  or  names,  or  in  the 
name,  right,  or  stead  of  any  of  them,  shall  or  will,  can  or  may,  by  any  ways 
or  means  whatsoever,  hereafter  have,  claim,  challenge,  or  demand,  any  right, 
title,  or  interest,  property,  claim,  and  demand,  of,  in,  to,  or  out  of  the  same 
,  or  any  of  them,  or  any  part  thereof,  but  that  I  the  said 
,  my  heirs,  and  assigns,  and  every  of  them,  from  all  estate,  right, 
title,  interest,  property,  claim,  and  demand,  of,  in,  to,  or  out  of  the  said 

or  any  of  them,  or  any  part  thereof,  are,  is,  and  shall  be,  by 
these  presents  forever  excluded  and  debarred. 

In  Witness  Whereof,  The  said  party  of  the  first  part  to  these  presents 
hath  hereunto  set  her  hand  and  seal,  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

{Signature!)     {Seal.) 
In  Presence  of 

(64.) 

A  Release  between  two  Traders  on  Settling  Accounts;. 

Whereas  sundry  accounts,  current  and  otherwise,  and  divers  dealings 
in  trade  have  been  subsisting  for  a  long  time  past  between  of 

trader,  and  of  trader, 

which  said  accounts  and  dealings,  the  said  and 

have  balanced  and  adjusted,  whereby  it  appears  that  nothing 
remains  due  from  the  one  to  the  other;  and  whereas,  therefore,  to  prevent 
any  future  disputes  concerning  the  said  accounts  and  dealings,  and  to  con- 
firm the  said  adjustment,  the  said  and  have 
mutually  agreed  to  give  reciprocal  releases  from  each  other.  Now  know  all 
men  by  these  presents,  that  the  said  {one  of  the  parties)  (for  the  consid- 
eration abovesaid,  and  to  prevent  all  future  disputes)  for  himself,  his  execu- 
tors, and  administrators,  doth  remise,  release,  and  forever  quit-claim  unto 
the  said  {the  other  party)  his  all  and  all  manner  of 
action  and  actions,  cause  and  causes  of  action,  suits,  debts,  dues,  sum  and 
sums  of  money,  accounts,  reckonings,  bonds,  specialties,  covenants,  con- 
tracts, controversies,  agreements,  promises,  variances,  damages,  extents, 
executions,  claims  and  demands  whatsoever,  both  at  law  and    in  equity, 


THE  PURPOSE  OF  SUCH  PAPERS.  i^i 

which  against  the  said  his  the  said 

now  hath  or  ever  had,  on  account  of  their  said  mutual  deah'ngs,  or  for  or  by 
reason  of  any  other  cause,  matter,  or  thing  whatsoever,  from  the  beginning 
of  the  world  to  the  day  of  the  date  of  these  presents. 

And  the  said  {the  other  party)  (for  the  consideration  abovesaid,  and 
to  prevent  all  future  disputes)  for  himself,  his  executors,  and  administrators, 
doth  remise,  release,  and  forever  quit-claim  unto  the  said  {the  other  party), 
his  all  and  all  manr.er  of  action  and  actions,  cause  and  causes  of 

action,  suits,  debts,  dues,  sum  and  sums  of  money,  accounts,  reckonings, 
bonds,  specialties,  covenants,  contracts,  controversies,  agreements,  prom- 
ises, damages,  extents,  executions,  claims,  and  demands  whatsoever,  both  at 
law  and  in  equity,  which  againstthe  said  his 

the  said  now  hath  or  ever  had,  on  account  of  their  said  mutual 

dealings,  or  for  or  by  reason  of  any  other  cause,  matter,  or  thing  whatso- 
ever, from  the  beginning  of  the  world  to  the  day  of  the  date  of  these 
presents. 

In  Witness  Whereof,  we  have  hereunto  set  our  hands  and  seals,  tbw 
day  of  in  the  year 

{Signatures^    {Seals.) 

In  Presence  of 


CHAPTER  XVI. 


NOTES   OF   HAND  AND  BILLS  OF  EXCHANGE,   DRAFTS,  AND 

CHECKS. 


SECTION  I. 

THE   PURPOSE   OF,    AND   THE   PARTIES    TO,    SUCH    PAPERS. 

These  instruments  are  usually  negotiable.  By  negotiable 
paper  is  meant  evidence  of  debt  which  may  be  transferred  by 
indorsement  or  delivery,  so  that  the  transferee  or  holder  may 
sue  the  same  in  his  own  name,  and  as  if  it  had  been  made  to 
him  originally ;  or,  in  other  words,  it  means  paper,  that  is,  bills 
of  exchange  or  promissory  notes,  or  drafts,  or  checks,  payabl 
to  the  order  of  a  payee,  or  to  bearer. 

The  rules   of  law    on  the   subject  of  negotiable  paper   are 

more  exact  and  technical  than  those  of  any  other  department 

of  Mercantile  Law.     They  reach,  on  many  points,  an  extreme 

nicety,  which  makes  it  difficult  to  express  them  intelligibly  to 

11 


1 62      NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

persons  who  do  not  already  possess  some  familiarity  with  the 
subject.  All  difficulty  of  this  kind  could  have  been  easily 
avoided  by  me  by  omitting  any  notice  of  these  nice  points. 
But  it  was  thought  better  to  mention  them,  one  and  all,  for 
these  are  the  things  an  intelligent  man  of  business  should  know  ; 
and  although  the  rules  stated,  especially  those  in  reference  to 
presentment,  demand,  notice,  and  some  other  subjects,  may 
seem  to  be  intricate  and  difficult,  they  require,  it  is  believed, 
only  careful  consideration  to  be  fully  understood. 

Where  and  when  bills  of  exchange  were  invented  is  not  cer- 
tainly known.  They  were  not  used  by  any  ancient  nations,  but 
have  been  employed  and  recognized  by  most  commercial 
nations  for  some  centuries.  A  still  more  recent  invention  is 
the  promissory  negotiable  note,  which,  in  this  country,  for  inland 
jind  domestic  purposes,  has  taken  the  place  of  the  bill  of 
exchange  very  generally.  Besides  these  two,  bills  of  lading, 
and  some  other  documents,  have  a  kind  of  negotiability,  but  it 
is  quite  imperfect.  The  utility  of  bills  and  notes  in  commerce, 
arises  from  the  fact  that  they  represent  money,  which  is  the 
representative  of  the  market  value  of  everything ;  and  many 
of  the  peculiar  rules  respecting  negotiable  paper  are  derived 
from  this  representation,  and  intended  to  make  it  adequate  and 
effectual. 

A  negotiable  bill  of  exchange  is  a  written  order  whereby  A 
orders  B  to  pay  to  C  or  his  order,  or  to  bearer,  a  sum  of  money 
absolutely  and  at  a  certain  time, 

(C5.) 

Common  Form,  of  a  Bill  of  Exchange. 

$  New  York,  January        ,  18    . 

days  (or  months)  after  siglit,  (or  At  sight,)  pay  to  the  order  of 
C  dollars.     Value  received,  and  charge  the 

same  to  account  of 

(Signed)  A 
ToB 

A  is  the  Drawer,  B  the  Drawee,  and  C  the  Payee.  If  the 
bill  is  presented  to  B,  and  he  agrees  to  obey  the  order,  he 
"accepts"  the  bill,  and  this  he  does  in  a  mercantile  way  by 
writing  the  word  "Accepted"  across  the  face  of  the  bill,  and 


COMA/O.V  FORMS  OF  PROMISSORV  NOTES.  163 

also  writing  his  name  below  this  word ;  then  the  Drawee 
becomes  the  Acceptor.  If  C,  the  payee,  chooses  to  transfer 
the  paper  and  all  his  rights  under  it  to  some  other  person,  h 
may  do  this  by  writing  his  name  on  (usually  across)  the  back 
this  is  called  Indorsement,  and  C  then  becomes  an  Indorser. 
The  person  to  whom  C  thus  transfers  the  bill  is  an  Indorsee. 
The  indorsee  may  again  transfer  the  bill  by  writing  his  nam(i 
below  that  of  the  former  Indorser,  and  the  Indorsee  then 
becomes  the  second  Indorser ;  and  this  process  may  go  on 
indefinitely.  If  the  added  names  cover  all  the  back  of  the 
note,  a  piece  may  be  wafered  on  to  receive  more.  In  France, 
this  added  piece  is  called  ''allonge"  and  this  word  is  used  in 
some  law-books,  but  not  by  our  merchants. 

Promissory  notes  of  hand  are  written  in  many  ways,  which, 
however,  differ  only  in  the  different  words  in  which  they 
express  the  same  thing.  We  will  first  give  the  full  Form  of  a 
technically  accurate  note,  and  afterwards   of  the    more  usual 

Forms : 

(06.) 

New  York,  January  5,  1S7S. 
For  value  received,  I  promise  John  Smith  to  pay  to  him  or  to  his  order, 
one  thousand  dollars  in  three  months  from  this  day,  with  interest  from  date. 

Henry  Simmons. 

But  promissory  notes  are  seldom,  if  ever,  written  in  this 
way  in  practice.  They  are  shortened  and  simplified  in  a  great 
variety  of  ways,  mercantile  usage  having , given  a  meaning  to 
expressions  which  the  law  accepts  and  enforces.  Some  of  the 
more  common  forms  in  use  are  as  follows  : 

?i,ooo/u'V.  New  York,  January  5,  1S69. 

Three  months  after  date,  I  promise  to  pay  to  the  order  of  John  Smith, 
one  thousand  -f^Q  dollars,  at  the  North  River  Bank,  value  received. 

Henry  Simmons. 

If  it  is  intended  that  more  than  one  person  shall  be  liabU 
on  the  note,  the  following  is  a  customary  form : 

$1,000  /,-,V  New  York,  January  5,  18S2. 

Value  received,  we  jointly  and  severally  promise  to  pay  to  Robinson, 
Wellman  &  Co.,  or  order,  one  thousand  ^^^  dollars  in  three  months  from 
date. 


1 64      NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

"With  interest"  may  be  added  if  that  is  agreed  upon,  other* 
wise  it  bears  no  interest  until  after  it  is  due.  So  it  may  be  "  on 
demand,"  in  which  case  it  bears  no  interest  until  after  demand  is 
made;  "after  date"  or  "from  date,"  should  be  written, 
although  the  law  would  supply  these  words. 

If  the  note  be  signed  by  more  than  one  person,  all  the 
signers,  whether  the  note  says  "I  promise"  or  "We  promise," 
are  liable  jointly  ;  but  in  the  latter  case  only  jointly  and  not 
jointly  and  severally  unless  the  note  says  so. 

Generally  speaking,  notes  are  not  made  payable  at  any  par- 
ticular place.  But  they  may  be  made  payable  at  any  bank,  or 
the  promisor's  own  house  or  office,  or  wherever  else  he  chooses. 
The  effect  of  making  a  note  payable  at  a  certain  place  is  this  • 
In  this  country  neither  a  promissory  note  nor  a  bill  of  exchang-* 
drawn  payable  at  a  certain  place,  nor  a  bill  accepted  payable  c* 
a  certain  place,  need  be  presented  at  that  place  in  order  to  su^ 
tain  an  action  against  the  maker  oi  the  note  or  the  acceptor  f-* 
the  bill ;  but  he  may  show,  by  way  of  defence,  that  he  was  read  t 
at  that  place  with  funds  to  pay  the  note  or  bill,  and  then  hewi^l 
escape  all  damages  and  interest.  And  if  he  can  show  a  pos-. 
tive  loss  from  the  want  of  such  presentment, — as,  for  instancy 
by  the  subsequent  failure  of  a  bank  where  he  had  placed  fundi 
to  meet  the  note  or  bill, — he  will  be  discharged  from  his  lis,, 
bility  on  the  paper  to  the  amount  of  the  loss.  But  the  drawee.n 
of  the  bill  and  the  indorsers  of  the  bill  or  note  are  dischargen 
by  a  neglect  to  demand  payment  at  such  specified  place. 

In  some  States,  Indiana,  for  example,  it  is  customary  to  add 
"without  relief  from  valuation  and  appraisement  laws;"  and 
also,  "if  the  note  is  not  paid  at  maturity  five  per  cent,  shall  be 
added  and  collected  as  attorney's  fees." 

If  the  note  be  secured  by  mortgage  it  is  usual  to  attach  to 
the  note  coupon  notes,  each  of  which  is  for  six  months'  interest ; 
and  also  a  power  of  attorney  to  some  attorney  to  confess  judg- 
ment. We  give  below  a  full  Form  for  such  additions  to  a  note 
of  hand,  given  in  Chicago  to  a  lender  in  Boston  : 

$2,000.  Chicago,  Illinois,  May  8th,  1875.    ^ 

Three  (3)  years  after  date,  for  value  received,  I  promise  to  pay  to 

or  order,  the  principal  sum  of  Two 


COA/AfOuV  FORMS  OF  PROMISSORY  jVOTES.  165 

Thousand  Dollars,  with  interest  thereon  at  the  rate  of  Ten  (10;  per  cent,  per 
annum,  payable  semi-annually,  on  the  8th  clays  of  November  and  May,  in 
each  and  every  vear  until  said  principal  sum  is  fully  paid,  bot'.i  principil  and 
interest  payable  at  the  office  of  t 

Boston,  Massachusetts. 

The  several  installments  of  interest  aforesaid  for  said  period  of  Three 
(3)  years  are  further  evidenced  by  Six  (6)  interest  notes  of  even  date  here- 
with. 

And  I  agree  that  if  default  be  made  on  t!ie  payment  of  any  o-e  of  the 
interest  installments  at  the  time  and  place  the  same  become  due  as  above, 
and  if  said  default  shall  continue  for  twenty  days  thereafter,  then  if  the  legal 
holder  or  holders  of  the  principal  note  shall  so  elect,  at  any  time  alter  said 
twenty  days,  the  principal  sum  of  Two  Tliousand  Dollars  shall  at  once  and 
without  notice  of  such  election  made,  become  due  and  payable. 
This  note  is  secured  by  Trust  Deed. 

Know  all  Men  by  these  Presents,  That  whereas  I,  the  subscriber, 
am  justly  indebted  upon  a  certain  Promissory  Note  of  even  date  herewith, 
due  in  Three  (3)  yenrs  afterdate  to 

or  order,  for  the  sum  of  Two  Thousand  (2.000)  Dollars,  with  interest  at  the 
late  of  Ten  (10)  per  cent,  per  annum,  payable  sem'-annuallyon  the  Eighth  fSth) 
days  of  November  and  May,  in  each  and  ever}-  j-ear  until  said  principal  s'.:m 
is  paid,  and  interest  evidenced  by  Six  (6)  Interest  Coupon  Notes  of  even 
date,  both  principal  and  interest  payable  at  the  office 
Boston,  Massachusetts. 

And  whereas  the  said  principal  note  contains  an  agreement  that  if  defa.ult 
be  made  in  the  payment  of  any  one  of  the  interest  installments  at  the  time  and 
place  the  same  beconies  due,  and  if  the  said  default  shall  continue  for  twenty 
days  thereafter,  then,  if  the  legal  holder  or  ho'ders  of  said  principal  note 
shall  so  elect  at  any  time  after  said  twenty  days  tlie  principal  sum  of  Two 
Thousand  (2,000)  Dollars  shall  at  once,  and  without  notice  of  election  made, 
Decome  due  and  payable. 

Now  Therefore,  in  consideration  of  the  premises,  I  do  hereby  make, 
constitute,  and  appoint  ,  or  any 

Attorney  of  Court  of  Record,  to  be  mv  true  and  lav/ful  attorney  irrevocably 
for  me  in  my  name,  place,  and  steid,  to  appear  in  any  Court  ci  Record  in 
term-time  or  vacation,  in  an}-  of  the  Stntes  or  Territories  of  the  United 
States,  at  anytime  after  said  note,  according  to  its  tenor  therein  set  forth,  or 
the  interest  thereon  becomes  payable,  to  waive  service  of  process,  accept  i 
declaration  and  confess  judgment  in  favor  of  tlie  said 

or  liis  assigns  upon  said  note  for  the  sum  of  Two  Thous- 
and (2.000)  Dollars  and  interest  unpaid,  at  the  rate  therein  mentioned,  up 
to  the  day  of  said  judgment,  together  with  costs  and  Thirty  (30)  Dollars 
attorney's  fees.  And  also  to  file  a  cognovit  for  the  said  amount  and  interest, 
with  an  agreement  therein  that  no  writ  of  error  or  appeal  sliall  be  prosecuted 
upon  the  judgment  entered  by  virtue  hereof,  or  any  Bill  of  Equity  filed  to 


1 66       NOTES  OF  HAND,  DILLS  OF  EXCHANGE,  ETC. 

interfere  with  the  operation  of  said  ju  Vment,  and  to  release  all  errors  that 
intervene  in  the  entering  up  of  said  judgment  or  issu'ng  execution  thereon, 
and  to  consent  to  immediate  execution  upon  said  judgment.  Hereby  ratify- 
ing and  confirming  all  that  my  said  Attorney  may  do  by  virtue  hereof. 

Witness  my  hand  and  seal,  this  Eighth  (Sth)  day  of  May,  A.  D.  one 
thousand  eight  hundred  and  seventy-five  (1875.) 

In  Presetice  of 

Chicago,  Illinois,  May  Sth,  1S75. 

Due  to  or  order.  One  Hundred 

Dollars  on  the  Sth  day  of  November,  A.  D.  1875,  without  grace,  at  the 
office  of  ,  Boston,  Massachusetts, 

with  interest  at  the  rate  of  ten  per  cent,  per  annum  after  maturity,  being  for 
an  installment  of  interest  due  on  that  day  upon  my  principal  promissory  note 
of  even  date  herewith,  payable  to 

or  order,  three  (3)  years  after  its  date,  for  the  sum  of  Two  Thousand  (2,000) 
Dollars  secured  by  trust  deed. 

In  consideration  of  the  premises,  I  do  hereby  make  and  appoint 

or  any  other  Attorney  of  any  Cou'-*' 
of  Record  in  the  United  States  of  America,  to  be  my  true  and  lawful 
Attorney  for  me  in  my  name,  place,  and  stead,  to  appear  in  any  Court  of 
Record  in  term-time  or  vacation,  in  any  State,  District,  or  Territory  of  the 
United  States,  at  any  time  after  this  interest  coupon  becomes  due,  to  waive 
.service  of  process,  accept  a  declaration,  and  confess  a  judgment  in  favor  of 
the  legal  holder  hereof  for  the  amount  due  and  unpaid  hereon,  with  interest 
as  aforesaid  to  the  day  of  entering  such  judgment,  together  with  costs,  and 
twenty  dollars  for  the  attorney's  fee,  and  to  file  a  cognovit  for  such  amounts, 
with  an  agreement  therein  that  execution  may  issue  forthwith,  and  that  no 
writ  of  error  or  appeal  shall  be  prosecuted  upon  such  judgment,  nor  any  Bill 
in  Equity  filed  to  interfere  in  any  manner  with  the  operation  of  said  judg- 
ment, and  to  release  all  errors  that  may  intervene  in  the  entering  up  said 
judgment  and  issuing  the  execution  thereon. 

Hereby  ratifying  and  confirming  all  that  my  said  attorney  may  do  by 

virtue  hereof. 

No  protest. 

Five  other  coupon  notes  for  interest  are  added. 

It  is  quite  important  to  have  a  clear  idea  of  the  difference 
between  the  parties  to  a  note,  and  the  parties  to  a  bill  of 
exchange.  If  A  makes  a  note  to  B,  then  A  promises  to  pay, 
and  is  the  promisor,  and  B  is  the  promisee,  or  payee.  But  if  it 
be  payable  to  B  or  order,  B  may  write  his  name  across  the  back, 
that  is,  may  indorse  it,  and  is  an  indorser.  And  if  he  directs, 
over  his  signature  on  the  back,  that  the  note  be  paid  to  any 
person  in  particular,  such  payee  is  now  an  indorsee.     But  when 


COMMON  FORMS  OF  PROMISSORY  NOTES.  i^-j 

A  bill  is  drawn,  nobody  promises,  in  words,  to  pay  it.  A  orders 
B  to  pay  to  C.  If  B,  when  requested,  says  he  will  not  do  as 
ordered,  the  law  supposes  A,  the  drawer,  to  have  promised  that 
he  would  pay  if  B  did  not.  If  B  "accepts,"  the  law  now 
supposes  that  B  promises  C  to  pay  the  bill  to  him.  Now  B, 
being  the  acceptor,  is  held  by  the  law  just  as  a  maker  of  a  note 
is,  because  he  is  supposed  to  have  promised  in  the  same  way. 
A,  the  drawer,  is  held  just  as  the  first  indorser  of  a  note  is  held, 
because  he  is  supposed  to  have  promised  to  pay  if  B  did  not. 
If  the  bill  was  negotiable,  that  is,  payable  to  C,  or  his  order, 
then  C  may  indorse  the  bill,  and  although  his  name  is  the  only 
one  on  the  back  of  the  bill,  he  is  treated  in  law  only  as  second 
indorser,  because  the  drawer  is  bound  in  the  same  way  as  a  first 
•ndorser.  And  if  D  then  puts  his  name  below  C's,  he  is  treated 
as  third  indorser,  and  so  on.  For  the  rights,  obligations,  an<« 
duties  of  all  these  parties,  seethe  subse^^uent  sections. 

We  repeat,  that  a  negotiable  promissory  note  is  a  written 
promise  to  pay  to  a  certain  person  or  his  order,  or  to  bearer,  rn 
a  certain  time,  a  certain  sum  of  money;  and  he  who  signs  th'» 
is  called  the  IMaker  or  the  Promisor ;  the  other  party  is  tb« 
Promisee  or  Payee.  The  payee  of  such  a  note  has  the  samn 
power  of  indorsement  as  the  payee  of  a  bill  of  exchange.  It 
the  note  be  not  payable  "to  order,"  nor  to  "bearer,"  it  is  then 
not  negotiable;  these  words  "or  order"  or  "to  bearer"  bein;; 
the  words  which  make  it  negotiable.  The  maker  of  a  negoti 
able  note  holds,  as  has  been  said,  the  same  position  as  the 
acceptor  of  a  bill,  the  drawer  the  same  as  the  first  indorser  of  a 
note;  that  is,  a  party  holding  a  note  and  seeking  payment  of  it 
looks  first  to  the  maker,  and  then  to  the  endorser;  one  holding 
a  bill  looks  first  to  the  drawee  or  acceptor,  and,  on  his  failure, 
to  the  drawer. 

Neither  indorsement,  nor  acceptance,  nor  making,  is  com 
plete  until  delivery  and  reception  of  the  bill,  or  note,  or 
acceptance ;  and  a  defendant  may  show  that  there  was  no  legal 
delivery  of  the  paper. 

The  law  of  negotiable  paper  first  defines  a  bill  or  note,  and 
determines  what  instruments  come  under  these  names,  and  then 
describes  and  ascertains  the  duties  and  obligations  of  all  the 
parties  we  have  named  above.     We  shall  follow  this  order. 


I6a       NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

SECTION  II. 

WHAT    IS   ESSENTIAL   TO   A    NEGOTIABLE   NOTE   OR   BILL. 

A  WRITTEN  order  or  promise  may  be  perfectly  valid  as  a 
written  contract  or  promise,  but,  although  made  "to  order,"  will 
not  be  negotiable,  unless  certain  "requisites  of  the  law-merchant 
are  complied  with. 

The  difference  between  a  note  that  is  negotiable  and  one 
that  is  not,  is  very  important  in  many  respects.  One  of  these 
•is  as  to  the  operation  of  the  trustee  process,  or  foreign  attach- 
ment, or  garnishee  process,  as  it  is  sometimes  called.  If  A 
owes  B  a  hundred  dollars,  C,  a  creditor  of  B,  may  ti'ustee  A 
and  A  must  then  pay  to  C  what  he  owes  to  B.  And  this  is  so, 
even  if  A  have  given  his  note  to  B  for  the  hundred  dollars,  if 
the  note  be  not  negotiable,  that  is,  not  to  B  or  order,  unless  A 
has  actual  notice  that  the  note  has  been  assigned  for  value  to  a 
third  person.  But  if  the  note  be  negotiable  and  not  overdue, 
A  cannot  be  trusteed.  The  reason  is,  that  if  he  is  obliged  to 
pay  the  money  to  C,  and  B  should  indorse  the  note  to  D  for 
value,  and  D  take  it  honestly,  A  must  pay  the  note  to  D,  and 
so  would  have  to  pay  it  twice.  But  if  the  note  is  not  negotia- 
ble, B  cannot  indorse  it,  and  A  is  safe  in  paying  the  money  over. 

I.  The  Promise  must  be  absolute  and  definite. — The 
'promise  of  the  note,  and  the  order  of  the  bill,  must  be  absolute. 
Words  expressive  of  intention  only  do  not  make  a  promissory 
note,  and  a  mere  request  without  an  order  does  not  make  a  bill 
of  exchange.  But  no  one  word,  and  no  set  of  words,  are  abso- 
lutely necessary,  for  if  from  all  the  language  the  distinct 
promise  or  positive  order  can  be  inlerred,  that  is  sufficient. 

The  time  of  payment  is  usually  written  in  a  bill  or  note;  if 
not,  it  is  payable  on  demand.  The  time  of  payment  must  not 
depend  on  a  contingency.  In  fact,  any  contingency  apparent 
on  the  face  of  the  instrument  prevents  it  from  being  a  negotiable 
note;  and  the  happening  of  the  contingency  does  not  cure  it. 
And  the  payment  promised  or  ordered  must  be  of  a  definite 
sum  of  money. 

A  negotiable  bill  of  exchange  or  promissory  note  must  be 
payable  in  money  only,  and  not  in  goods  or  merchandise,  or 
property  of  any  kind,  or  by  the  performance  of  any  act.     If 


WHAT  IS  ESSENTIAL  TO  A  NEGOTIABLE  NOTE.    169 

payable  in  "current  funds,"  or  good  "bank-notes,"  or  "current 
bank-notes,"  this  slioukl  not  be  sufficient  on  general  principles  ; 
some  courts,  however,  construe  this  as  meaning  notes  convert- 
ible on  demand  into  money,  and  therefore  as  the  same  thing  as 
money,  and  call  the  note  negotiable. 

A  bill  or  note  may  be  written  upon  any  paper  or  proper 
substitute  for  it,  in  any  language,  in  ink  or  pencil.  A  name 
may  be  signed  or  indorsed  by  a  mark ;  and,  though  usually 
written  at  the  bottom,  it  may  be  sufficient  if  written  in  the 
body  of  the  note;  as,  "I,  A  B,  promise,"  &c. ;  unless  it  can  be 
shown  that  the  note  was  incomplete,  and  was  intended  to  be 
finished  by  signature  If  not  dated,  it  will  be  considered  as 
dat jd  w^hen  it  was  made ;  but  a  written  date  is  privid  facie 
evidence  (this  means  evidence  which  may  be  overcome  by 
(opposite  and  better  evidence,  but  until  so  overcome  is  sufficient) 
of  the  time  of  making.  The  amount  is  usually  written  in 
figures  at  the  corner  or  bottom.  If  the  sum  is  written  at  length 
ivi  the  body,  and  also  in  figures  at  the  corner,  the  written  words 
control  the  figures,  and  evidence  is  not  admissible  to  show  that 
the  figures  were  right  and  the  words  inaccurate.  But  in  an 
American  case,  a  promissory  note,  expressed  to  be  for  "thee 
hundred  dollars,"  and  in  figures  in  the  margin,  $300,  was  held 
to  be  a  good  note  for  three  hundred  dollars,  if  the  maker  when 
he  signed  it  intended  "three"  when  he  wrote  "thee;"  and 
whether  such  was  his  intention  was  a  question  for  the  jury. 
And  the  omission  of  such  a  word  as  "dollars,"  or  "pounds,"  or 
"sterling,"  may  be  supplied,  if  the  meaning  of  the  instrument 
is  quite  clear. 

It  has  been  just  said  that  any  contingency  apparent  on  the 
face  of  the  instrument  prevents  it  from  being  a  negotiable  note. 
Hence  it  is  not  safe  to  write  in  the  body  of  the  note,  or  in 
connection  with  the  promise,  any  condition  or  contingency. 
But,  if  what  is  so  written  in  no  way  affects  the  promise  itself, 
the  note  may  still  be  negotiable. 

Thus,  in  some  parts  of  this  country,  persons  who  sell  a 
machine,  or  other  thing,  on  a  credit,  sometimes  take  a  promis- 
sory note    payable    to    the    seller  or  order.,  and  containing   an 


lyo      NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

Jidditional  clause,  providing,  that,  until  the  note  is  paid,  the 
property  in  the  thing  sold  (or  the  ownership  of  it)  shall  be  and 
remain  in  the  seller.  Such  notes  are  often  made  in  the  follow- 
ing form : 

(67.) 

Form  of  a  Note  given  for  a  Chattel  sold,  with  a  Condition 
preserving  the  Ownership  of  the  Seller. 

%  {Place  and  date)    1 8 


On  the 

day  of 

iS         I 

of 

,  County  of 

and  State  of 

promise  to  pay 

,  or  order 

dollars  at  the  First  National 

Bank  in 

with  interest  at 

per  cent,  per  annum  until  paid.     And 

it  is  further  agreed  that  the  title  to  the  (^reaper)  for  which  this  note  is  given  shall 
remain  in  said         {the  seller)  until  this  note  is  fully  paid. 
Value  received 
{Witness.)  {Signature.) 

On  the  back  of  this  note  is  sometimes  the  following  state- 
ment: 

Statement  made  for  the  Purpose  of  obtaining  Credit. 

I  own  acres  of  land  in  my  own  name  in  the  Town  of 

County  of  and  State  of  which  is  worth  at  a  fair 

valuation,  $ 

It  is  not  incumbered  by  mortgage  or  otherwise,  except  the  amount  of 
$  ,  and  the  title  is  perfect  in  me  in  all  respects.     I  have  stock  and 

personal  property  to  the  amount  of  $  over  and  above  my  debts 

and  liabilities. 

The  above  property  being  worth  over  and  above  my  debts,  liabilities,  and 
exemptions  at  least  five  times  the  amount  of  the  within  note. 

The  question  has  arisen  whether  such  a  note  is  negotiable. 
Suppose  the  seller  of  the  chattel,  who  is  payee  of  the  note,  sells 
the  note  and  indorses  it  for  value  to  an  innocent  indorsee;  then 
the  buyer  finds  that  he  was  cheated,  and  puts  in  this  defence  of 
fraud  when  he  is  sued  on  the  note  by  the  indorser.  He  can 
make  this  defence  if  this  note  be  not  negotiable ;  but  he  cannot 
make  it  if  it  be  negotiable.  I  should  say  it  was  negotiable;  and 
that  the  only  effect  of  the  condition  or  provision  annexed  to  the 
promise,  was,  that  it  operated  much  as  a  mortgage  of  the  thing,  by 
the  buyer,  back  to  the  seller,  to  secure  the  payment.  In  some 
States  such  a  note  must  be  recorded  like  a  chattel  mortgage. 

2.  The  Payee  must  be  designated. — The  payee  should  be 


WHAT  IS  ESSENTIAL  TO  A  NEGOTIABLE  NOTE. 


171 


distinctly  named,  unless  the  bill  or  note  be  made  payable  to 
bearer.  If  it  can  be  gathered  from  the  instrument,  by  a 
reasonable  or  necessary  construction,  who  is  the  payee,  that  is 
enough.  The  note  may  be  made  payable  to  the  promisor  or  his 
order;  that  is,  a  man  may  say,  I  promise  to  pay  to  my  own 
order;  and  such  note  is  nothing  until  the  promisor  not  only 
signs  it,  but  indorses  it. 

A  note  indorsed  in  blank  is  always  transferable  by  delivery, 
just  as  if  it  were  made  payable  to  bearer;  because  any  holder 
may  write  over  the  indorsement  an  order  to  pay  to  himself. 
Indorsements  are  either  indorsements  in  blank,  by  which  is 
meant  the  name  of  the  indorser  and  nothing  more,  or  indorse- 
ments in  fnll,  which  are  so  called  when  over  the  name  of  the 
indorser  is  written,  "pay  to  A  B."  (By  A  B  we  mean  the  name 
of  the  person  to  whom  the  note  or  bill  is  indorsed.)  These  twc 
kinds  of  indorsements  are  fully  explained  subsequently  in 
section  VI.  of  this  chapter.  A  note  to  the  order  of  the  promi- 
sor  himself,  and  indorsed  by  him  in  blank,  is  therefore  much 
the  same  thing  as  a  note  to  bearer.  But  it  is  quite  commonly 
used  in  our  mercantile  cities,  because  the  holder  can  always 
pass  it  away  without  indorsing  if  he  chooses,  or  can  put  hia 
name  on  it  as  second  indorser  if  he  likes  to.  If  the  indorsee 
be  named,  and  the  note  get  into  the  possession  of  the  wrong 
person  of  the  same  name,  this  person  neither  has  nor  can  give; 
a  title  to  it.  If  the  name  be  spelt  wrong,  evidence  of  intention 
is  receivable.  If  a  father  and  son  have  the  same  name,  and 
either  of  them  has  possession  of  the  note  and  indorses  it,  this 
would  be  evidence  of  his  rightful  ownership. 

If  neither  payable  to  bearer,  nor  to  the  maker's  or  drawer's 
order,  nor  to  any  other  person,  it  would  be  an  incomplete  and 
invalid  instrument. 

A  note  to  a  fictitious  payee,  with  the  same  name  indorsed  by 
Jhe  maker,  would  undoubtedly  be  held  to  be  the  maker's  own 
note,  either  payable  to  bearer,  or  to  himself  or  order,  by  another 
name,  and  so  indorsed.  If  a  blank  be  left  in  a  bill  for  the 
payee's  name,  a  bond  fide  holder  may  fill  it  with  his  own,  the 
issuing  of  the  bill  in  blank  being  an  authority  to  a  bond  fide 
holder  to  insert  the  name.     And  if  the  name  of  the  payee  be 


172       NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

not  the  name  of  a  person,  as  if  it  be  the  name  of  a  ship,  the 
instrument  is  payable  to  bearer.  A  note  payable  to  different , 
persons  in  the  alternative,  that  is,  to  one  or  the  other  of  them, 
is  not  a  good  promissory  note.  A  bill  or  note  "  to  the  order 
of"  any  person  is  the  same  as  if  to  him  "or  his  order,"  and  may 
be  sued  by  him  without  indorsement. 

3.  Of  Ambiguous  and  Irregular  Instrument.s. — The  law 
in  relation  to  protest  and  damages  makes  it  sometimes  import- 
ant to  distinguish  between  a  promissory  note  and  a  bill  of 
exchange,  because,  by  law,  a  foreign  bill  of  exchange,  if  unpaid, 
should  be  protested,  but  not  a  promissory  note  ;  but  it  is  a  com- 
'(non  practice  to  protest  promissory  notes  when  they  are  not  paid 
The  rule  in  general  is,  that,  if  an  instrument  be  so  ambiguous 
m  its  terms  that  it  cannot  be  certainly  pronounced  one  of  these 
lo  the  exclusion  of  the  other,  the  holder  may  elect  and  treat  it 
is  either.  As  if  written,  "  Value  received,  in  three  months  from 
••'late,  pay  the  order  of  H,  L.  ;^500.  (Signed)  A.  B.;"  and  an 
address  or  memorandum  at  the  bottom,  "At  Messrs.  E.  F.  & 
Co." 

4.  Of  Bank-Notes. — Bank-notes  or  bank-bills  are  promis- 
sory notes  of  a  bank,  payable  to  bearer ;  and,  like  all  notes  to 
bearer,  the  property  in  them  passes  by  delivery.  They  are 
intended  to  be  used  as  money ;  and,  while  a  finder,  or  one  who 
'steals  them,  has  no  title  himself  against  the  owner,  still,  if  he 
passes  them  away  to  a  bona  fide  holder,  that  is,  a  holder  for  value 
without  notice  or  knowledge,  such  owner  holds  them  against 
the  original  owner.  And  if  the  bank  pays  them  in  good  faith 
on  regular  presentment,  the  owner  has  no  claim.  They  pass  by 
a  will  bequeathing  money.  They  are  a  good  tender,  unless 
objected  to  at  the  time  because  not  money.  Forged  bills,  given 
in  payment,  are  a  mere  nullity.  ]>ills  of  a  bank  which  has  failed, 
but  of  which  the  failure  is  unknown  to  both  parties,  are  now, 
generally,  put  on  the  footing  of  forged  or  void  bills.  But  if  the 
receiver  of  them,  by  holding  them,  and  by  a  delay  of  returning 
or  giving  them  up,  injures  the  payer  and  impairs  his  opportunity 
or  means  of  idemnity,  the  receiver  must  then  lose  them. 

5.  Of  Checks  on  Banks. — A  check  on  a  bank  is  undoubt- 
edly a  bill  of  exchange  ;  but  usage  and  the  nature  of  the  case 


WHAT  IS  ESSENTIAL  TO  A  NEGOTIABLE  NOTE,     ly^ 

have  introduced  some  important  qualifications  of  the  general 
law  of  bills  in  its  application  to  checks.  A  check  requires  no 
acceptance,  because  a  bank,  after  a  customary  or  reasonable 
time  has  elapsed  since  deposit,  and  while  still  in  joossession  of 
funds,  is  bound  to  pay  the  checks  of  the  depositors.  The  drawer 
of  a  check  is  not  a  surety,  as  is  the  drawer  of  a  bill,  but  a  prin-. 
cipal  debtor,  like  the  maker  of  a  note.  Nor  can  a  drawer  com- 
plain of  any  delay  whatever  in  the  presentment  ;  for  it  is  an 
absolute  appropriation,  as  between  the  drawer  and  the  holder, 
to  the  holder  of  so  much  money  in  the  banker's  hands  ;  there  it 
may  lie  at  the  holder's  pleasure.  But  delay  is  at  the  holder's  risk  ; 
for  if  the  bank  fails  after  he  could  have  got  his  money  on  the 
check,  the  loss  is  his.  If  the  bank  before  he  presents  his  check 
pay  out  all  the  money  of  the  drawer  on  other  checks,  he  may  the*-'* 
look  to  the  drawer. 

If  one  who  holds  a  check  as  payee,  or  otherwise,  transfers  « 
to  another,  he  has  a  right  to  insist  that  the  check  shall  be  pre. 
sented  in  the  course  of  the  banking  hours  of  that  day,  or  Si» 
farthest  the  next  ;  that  is,  he  is  not  responsible  for  the  failur<5 
of  the  bank  to  pay,  unless  it  is  so  presented,  provided  it  would 
then  have  been  paid.  And  if  the  party  receiving  the  check  live 
elsewhere  than  where  the  bank  is,  it  seems  that  he  should  seni;l ' 
it  for  collection  the  next  day  ;  and  if  to  an  agent,  the  agent  should 
present  it  at  latest,  in  the  course  of  the  day  after  he- receive! 
it.  If  the  check  be  drawn  when  the  drawer  neither  har. 
funds  in  the  bank,  nor  has  made  any  arrangement  by  which  ho. 
has  a  right  to  draw  the  check,  the  drawing  it  is  a  fraud,  and  the. 
holder  may  bring  his  action  at  once  against  the  drawer,  without 
presentment  or  notice. 

Checks  are  seldom  accepted.  But  they  are  often  marked  by 
the  bank  as  good,  and  this  binds  the  bank  as  an  acceptor. 

Checks  are  often  payable  to  bearer,  but  more  frequently  are 
drawn  payable  to  a  payee  or  his  order  ;  for  this  guards  against 
loss  or  theft,  because  the  check  will  not  be  paid  unless  the  payee 
writes  his  name  on  it ;  and  it  gives  to  the  drawer,  when  the  check 
is  paid  and  returned  by  the  bank  to  him,  what  is  the  same  as 
the  receipt  of  the  payee.  Generally,  a  check  is  not  payment 
until  it  is  cashed ;  then  it  is  payment  if  the  money  was  paid  to 


1^4      NOTES  OF  HAND,  BILLS  OF  EXCHAAGE,  ETC. 

the  creditor,  or  the  check  had  passed  through  his  hands.  A 
bank  cannot  maintain  a  claim  for  money  lent  and  advanced, 
merely  by  showing  the  defendant's  check  paid  by  them,  because 
the  general  presumption  is,  that  the  bank  paid  the  check  because 
it  was  drawn  by  a  depos'tor  against  funds. 

While  the  death  of  a  drawer  countermands  his  check,  if  the 
bank  pay  it  before  notice  of  the  death  reaches  them,  they  are 
discharged.  This  would  seem  to  be  almost  a  necessary  infer- 
ence from  the  general  purpose  of  banks  of  deposit,  and  the  use 
which  merchants  make  of  them. 

If  a  bank  pay  a  forged  check,  it  is  so  far  its  own  loss,  that 
the  bank  cannot  charge  the  money  to  the  depositor  whose  name 
was  forged.  But  the  bank  could  recover  the  money  back  from 
»/ne  who  presented  a  forged  check,  and  was  paid,  provided  the 
)ayee,  if  innocent,  loses  no  opportunity  of  indemnity  in  the  mean- 
ime,  and  can  be  put  in  as  good  a  position  as  if  the  bank  had 
.•efused  to  pay  it.  But  if  somebody  must  lose,  the  bank  should, 
because  it  is  the  duty  of  the  bank  to  know  the  writing  of  its  own 
riepositors.  If  it  pay  a  check  of  which  the  amount  has  been 
lalsely  and  fraudulently  increased,  it  can  charge  the  drawer  only 
with  the  original  amount.  But  if  the  drawer  himself  causes  or 
'  tacilitates  the  forgery,  as  by  so  carelessly  writing  it,  or  leaving 
It  in  such  hands,  that  the  forgery  or  alteration  is  easy,  so  that 
It  may  be  called  his  fault,  and  the  bank  is  innocent,  then  the 
tne  loss  falls  on  the  drawer.  If  many  persons,  not  partners,  join 
in  a  deposit,  they  must  join  in  a  check  ;  but  if  one  or  more 
abscond,  a  court  of  equity  will  jjermit  the  remainder  to  draw 
the  money. 

6.  Of  Accommodation  Paper. — An  accommodation  bill  or 
note  is  one  for  which  the  acceptor  or  maker  has  received  no  con- 
sideration, but  has  lent  his  name  and  credit  to  accommodate 
the  drawer,  payee,  or  holder.  Of  course  he  is  bound  to  all  other 
parties,  precisely  as  if  there  were  a  good  consideration  ;  for, 
otherwise,  it  would  not  be  an  effectual  loan  of  credit.  But  he  is 
not  bound  to  the  party  whom  he  thus  accommodates  ;  on  the 
contrary,  that  party  is  bound  to  take  up  the  paper,  or  to  pro\ide 
the  accommodation  acceptor,  or  maker,  or  indorser,  with  funds 
for  doing  it,  or  to  indemnify  him  for  taking  it  up.     And  if,  before 


WHAT  IS  ESSENTIAL  TO  A  AEGOTIABLE  NOTE,     i 


/  D 


.he. bill  or  note  is  due,  the  party  accommodated  provides  the 
party  lending  his  credit  with  the  necessary  funds,  he  cannot 
recall  them  ;  and  if  he  becomes  bankrupt,  they  remain  the 
property  of  the  accommodation  acceptor,  or  maker,  who,  if  sued 
on  the  bill  or  note,  can  charge  the  party  accommodated  with 
the  expense  of  defending  the  suit,  even  if  the  defence  were 
unsuccessful,  if  he  had  any  reasonable  ground  of  defence, 
because  the  defence  was  for  the  benefit  of  the  party  accommo- 
dated ;  inasmuch  as  he  must  repay  the  accommodation  party  if  he 
pays  the  bill  or  note. 

7.  Of  Foreign  axd  Inland  Bills. — Bills  of  exchange  may 
be  foreign  bills,  or  inland  bills.  Foreign  bills  are  those  which 
are  drawn  or  payable  in  a  foreign  country  ;  and  for  this  purpose, 
each  of  our  States  is  foreign  to  the  others.  Inland  bills  are 
drawn  and  payable  at  home.  Every  bill  is,  on  its  face,  an  inland 
bill,  unless  it  purports  to  be  a  foreign  bill.  If  foreign  on  its 
face,  evidence  is  admissible  to  show  that  it  was  drawn  at  home. 
If  a  bill  be  drawn  and  accepted  here,  but  afterwards  actually 
signed  by  the  drawer  abroad,  it  is  a  foreign  bill.  If  a  foreign 
bill  be  not  accepted,  or  be  not  paid  at  maturity,  it  should  at  once 
be  protested  by  a  notary  public.  Inland  bills  are  generally,  and 
promissory  notes  frequently,  protested  ;  but  this  is  not  gener- 
ally required  by  the  law.  The  holder  of  a  foreign  bill,  after 
protest  for  non-payment,  or  for  non-acceptance,  may  sue  the 
drawer  and  indorser,  and  recover  the  face  of  the  bill,  and,  in 
tiddition  thereto,  his  damages,  which  damages  on  protest  are 
generally  adjusted  in  this  country  by  various  statutes, — which 
give  greater  damages  as  the  distance  is  greater ;  and  an  estab- 
lished usage  would  supply  the  place  of  statutes  if  they  were 
wanting. 

8.  Of  the  Law  of  Place. — The  different  States  of  the 
Union  are,  as  to  questions  arising  under  Mercantile  Lav; 
foreign  countries  as  to  each  other.  Important  questions  some 
times  arise  in  the  case  of  foreign  bills  (as  well  as  in  some  other 
cases),  dependent  upon  what  is  called  the  Law  of  Place,  the 
Latin  phrase  for  which.  Lex  Loci,  is  often  used.  In  general, 
every  contract  is  to  be  governed  by  the  law  of  the  place  where 
it  is  made.     Thus,   if  a  bill  is  drawn  in    France,   and   there 


176      NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

indorsed  in  a  way  which  is  sufificient  here,  but  insufficient  there, 
the  indorsement  would  here  be  held  void.  But  if  a  contracc 
entered  into  in  one  place  is  to  be  performed  in  another,  as  in 
the  case  of  a  note  dated,  or  a  bill  drawn,  in  one  State,  but 
payable  in  another,  the  prevailing  rule  is,  that  the  law  of  the 
place  where  the  note  is  payable  construes  and  governs  the 
contract.  Therefore,  if  a  bill  be  drawn  in  England,  payable  in 
rVance,  the  protest  and  notice  of  dishonor  must  be  regulated 
L)y  the  law  of  France.  But  one  who  makes  such  a  note  may 
elect,  for  many  purposes,  which  law  shall  govern  it.  Thus,  if 
he  makes  it  in  New  York,  and  it  is  payable  in  Boston,  he  may 
promise  to  pay  the  legal  interest  of  New  York,  and  will  be 
bound  to  this  payment  in  Boston,  although  the  legal  interest  in 
Boston  is  less ;  but  if  there  be  no  such  express  promise,  the 
interest  payable  will  be  that  of  the  place  where  the  note  is 
payable. 

While  the  law  of  the  place  of  the  contract  interprets  and 
construes  it  as  a  debt,  the  law  of  the  place  where  it  is  put  in 
suit — which  is  called  the  Law  of  the  Forum,  or  Court — deter, 
mines  all  questions  as  to  remedy ;  that  is,  all  questions  which 
relate  to  the  legal  means  of  recovering  the  debt.  Thus,  in 
general,  the  statutes  of  limitation  of  the  place  of  the  court  are 
applied.  But  if  a  cause  of  action  relating  to  any  special  su)>. 
ject-matter  which  has  a  definite  location,  as  a  parcel  of  land  has, 
be  barred  by  a  statute  of  limitations  where  the  subject-matter 
is  situated,  it  is  barred  everywhere.  A  promisor,  not  subject 
to  arrest  in  the  country  where  the  note  is  made,  may  be  arrested 
under  the  laws  of  the  country  w^here  the  note  is  sued. 

It  will  always  be  presumed,  in  the  absence  of  testimony, 
that  ^he  law  of  a  foreign  country  is  the  same  with  that  of  the 
country  in  which  the  suit  is  brought.  If  a  difference  in  this 
respect  is  a  ground  of  defence,  or  of  action,  it  must  be  proved 
by  evidence. 

SECTION  III, 

THE  CONSIDERATION  OF  NEGOTIABLE  PAPER. 

I.  Exception  to  the  Common  Law  Rule,  in  the  Case 
OF  Negotiable  Paper. — By  the  common  law  of  England  and 
of  this  country,  as  we  have  seen,  no  promise  can  be  enforced, 


THE  CONSIDERATIOX  OF  NEGOTIABLE  PAPER. 


177 


unless  made  for  a  consideration,  or  unless  it  be  sealed.  But  bills 
and  notes  payable  to  order,  that  is,  negotiable,  are,  to  a  certai  i 
extent,  an  exception  to  this  rule.  Thus,  an  indorsee  cannot  Lj 
defeated  by  the  promisor  showing  that  he  received  no  considera- 
tion for  his  promise  ;  because  the  promisor  made  an  instrument 
for  circulation  as  money ;  and  it  would  be  fraudulent  to  give  to 
paper  the  credit  of  his  name,  and  then  refuse  to  honor  it.  But 
as  between  the  maker  and  the  payee,  or  between  indorser  and 
indorsee,  and,  in  general,  between  any  two  ivnncdiate  parties, 
the  defendant  may  rely  on  the  want  of  consideration ;  that  is, 
if  an  indorsee  sues  the  maker,  and  the  maker  says  he  had  no 
consideration  for  the  note,  this  is  no  defence  ;  but  if  the  indorsee 
sues  his  indorser,  and  the  indorser  shows  that  the  indorsee  paid 
him  nothing,  this  would  be  a  good  defence  ;  and  so  it  would  be 
if  the  payee  sued  the  maker.  So,  if  a  distant  indorsee  has 
notice  or  knowledge,  when  he  buys  a  note,  that  it  was  made 
without  consideration,  he  cannot  recover  on  it  against  the 
maker,  unless  it  was  an  accommodation  note,  or  was  intended 
as  a  gift. 

Thus,  if  A,  supposing  a  balance  due  from  him  to  B,  gives 
B  his  negotiable  note  for  the  amount,  and  afterwards  discovers 
that  the  balance  is  the  other  way,  B  cannot  recover  of  A  ;  nor 
can  any  third  or  more  distant  indorsee  who  knows  these  facts 
before  buying  the  note.  But  if  A  gives  B  his  note  wholly 
without  consideration,  for  the  purpose  of  lending  him  his  credit, 
or  for  the  purpose  of  making  him  a  gift  to  the  amount  of  th'. 
note,  and  C  buys  the  note  with  a  full  knowledge  of  the  fact:-, 
he  will  nevertheless  hold  A,  although  B  could  not.  If  the  note 
was  bought  honestly  for  a  fair  price,  the  buyer  should  recover 
its  whole  amount.  Every  promissory  note  imports  a  considera- 
tion ;  that  is,  none,  in  the  first  place,  need  be  proved ;  but 
when  want  of  consideration  is  relied  on  in  defence,  and  evidence 
is  given  on  one  side  and  the  other,  the  burden  of  proof  is  cl 
the  plaintiff  to  satisfy  the  jury  that  consideration  was  given. 

If  an   indorser,  sued  by  an  indorsee,   shows   that  the  note 

was  originally  made   in   fraud,  he   may  require  the   holder  to 

prove  that  he  paid   consideration  ;  but  if  this  be  proved,   he 

must  pay  the  whole  of  the  note,  unless  he  was  himself  defrauded 

12 


IjS       AOTES  OF  HA  AD,  BILLS  OF  EXCHANGE,  ETC. 

by  the  holder.  And  if  an  accommodation  note  be  discounted 
in  violation  of  the  agreement  of  the  party  accommodated,  the 
holder  can  still  recover,  provided  he  received  the  note  in  good 
faith,  and  for  valuable  consideration. 

2.  Of  "Value  Received." — "  Value  received  "  is  usually 
written,  and  therefore  should  be ;  but  is  not  necessary.  If  not 
written,  it  will  be  presumed  by  the  law,  or  may  be  supplied  by 
the  plaintiff's  proof.  If  expressed,  it  may  be  denied  by  the 
defendant,  and  disproved.  And  if  a  special  consideration  be 
stated  in  the  note,  the  defendant  may  prove  that  there  was  no 
consideration,  or  that  the  consideration  was  different.  If 
"  value  received  "  be  written  in  a  note,  it  means  received  by 
the  maker  from  the  payee  ;  if  the  note  be  payable  to  the  bearer, 
it  means  received  by  the  maker  from  the  holder.  In  a  bill, 
"  value  received  "  means  that  the  value  was  received  from  the 
payee  by  the  drawer.  But  if  the  bill  be  payable  to  the  drawer's 
own  order,  then  it  means  received  by  the  acceptor  from  the 
drawer. 

3.  What  the  Consideration  may  de. — A  valuable  consid- 
eration may  be  either  any  gain  or  advantage  to  the  promisor,  or 
any  loss  or  injury  sustained  by  the  promisee  at  the  promisor's 
request.  A  previous  debt,  or  a  fluctuating  balance,  or  a  debt 
due  from  a  third  person,  might  be  a  valuable  consideration. 
So  is  a  moral  consideration,  if  founded  upon  a  previous  legal 
consideration  ;  as,  where  one  promises  to  pay  a  debt  barred  by 
the  statute  of  limitations,  or  by  infancy.  But  a  merely  moral 
consideration,  as  one  founded  upon  natural  love  and  affection, 
or  the  relation  of  parent  and  child,  is  no  legal  consideration. 

No  consideration  is  sufficient  in  law  if  it  be  illegal  in  its 
nature ;  and  it  may  be  illegal  because,  first,  it  violates  some 
positive  law,  as,  for  example,  the  Sunday  law,  or  the  law  against 
usury.  Secondly,  because  it  violates  religion  or  morality,  as  an 
agreement  for  future  illicit  cohabitation,  or  to  let  lodgings  for 
purposes  of  prostitution,  or  an  indecent  wager ;  for  any  bill  or 
note  founded  upon  either  of  these  would  be  void.  Thirdly,  if 
distinctly  opposed  to  public  policy  ;  as  an  agreement  in  restraint 
of  trade,  or  injurious  to  the  revenue,  or  in  restraint  of  marriage, 
or  for  procurement  of  marriage,  or  suppressing  evidence,  or 
withdrawing  a  prosecution  for  felony  or  public  misdemeanor. 


THE  RIGHTS  AND  DUTIES  OF  THE  HOLDER.        179 
SECTION  IV. 

THE  RIGHTS  AND  DUTIES  OF  THE  MAKER. 

The  maker  of  a  note  or  the  acceptor  of  a  bill  is  bound  to 
pay  the  same  at  its  maturity,  and  at  any  time  thereafter,  unless 
the  action  be  barred  by  the  statute  of  limitations,  or  he  has 
some  other  defence  under  the  general  law  of  contracts.  Ap 
between  himself  and  the  payee  of  the  note  or  bill,  he  ma) 
make  any  defences  which  he  could  make  on  any  debt  arising 
from  simple  contract ;  as  want  or  failure  of  consideration  ; 
payment  in  whole  or  in  part  ;  set-off  ;  accord  and  satisfaction  ; 
or  the  like.  The  peculiar  characteristics  of  negotiable  paper 
do  not  begin  to  operate,  so  to  speak,  until  the  paper  has  passed 
into  the  hands  of  third  parties.  Then,  the  party  liable  on  the 
note  or  bill  can  make  none  of  these  defences,  unless  the  time 
or  manner  in  which  it  came  into  the  possession  of  the  holder 
lays  him  open  to  these  defences.  But  the  law  on  this  subject 
may  better  be  presented  in  our  next  section. 

SECTION  V. 

THE  RIGHTS  AND  DUTIES  OF  THE  HOLDER  OF  XEGOTIABLE  PAPER. 

I.  What  a  Holder  may  do  with  a  Bill  or  Note. — An 
indorsee  has  a  right  of  action  against  all  whose  names  are  on  the 
bill  when  he  received  it.  And  if  one  delivers  a  bill  or  note  which 
he  ought  to  indorse  and  does  not,  the  holder  has  an  action 
against  him  for  not  indorsing,  or  may  proceed  in  a  court  of  equity 
to  compel  him  to  indorse.  If  a  bill  comes  back  to  a  previous 
indorser,  he  may  strike  out  the  intermediate  indorsements  and 
sue  in  his  own  name,  as  indorsee  ;  but  he  has,  in  general,  no 
remedy  against  the  intermediate  parties,  because,  if  he  made 
them  pay  as  indorsers  to  him,  they  would  make  him  pay  as 
indorser  to  them.  If,  however,  the  circumstances  are  such  that 
tJiey,  if  compelled  to  pay,  would  have  no  right  against  him  as  an 
indorser  to  them,  as,  fir  example,  if  he  indorsed  it  "without 
recourse,"  then  he  may  have  a  claim  against  them. 

The  holder  of  a  bill  indorsed  and  deposited  with  him  for 
collection,  or  only  as  a  trustee,  can  use  it  only  in  conformity 


I  So       A'OTES  OF  HAiVD,  BILLS  OF  EXCHANGE,  ETC. 

with  the  trust.  And  if  the  indorsement  express  that  it  is  to  be 
collected  for  the  indorser's  use,  or  use  any  equivalent  language, 
this  is  notice  to  any  one  who  discounts  it;  and  the  party  dis- 
counting the  paper  against  this  notice  will  be  obliged  to  deliver 
the  note,  or  pay  its  contents,  if  collected,  to  the  indorser.  Thus, 
Mr.  Sigourney,  a  merchant  in  Boston,  remitted  to  Williams,  a 
London  banker,  for  collection,  a  bill  of  exchange  indorsed  by 
him,  and  over  his  name  was  written,  "  Pay  to  Williams  or  order 
for  my  use."  Williams  had  the  bill  discounted  for  his  own 
benefit  by  his  bankers,  and  failed ;  and  the  English  court  held 
that  the  indorsement  showed  that  the  bill  did  not  belong  to 
Williams,  and  that  the  discounters  had  no  right  to  discount  it  for 
him  ;  and  they  were  obliged  to  pay  the  amount  of  it  to  Sigourney, 

2.  Of  a  Transfer  after  Dishonor  of  Negotiable  Paper. 
— So  long  as  a  note  remains  due,  everybody  has  a  right  to  believe 
that  it  has  not  been  paid,  and  will  be  paid  at  maturity,  and  may 
purchase  it  in  that  belief.  But  as  soon  as  it  is  overdue,  the  date 
shows  it,  and  every  person  must  know  that  it  is  either  paid,  and 
so  extinguished,  or  that  it  has  not  been  paid,  and  therefore  is 
dishonored,  and  that  there  may  be  good  reasons  why  it  was  not 
paid,  or  good  defences  against  it.  He  therefore  now  takes  it  at 
his  own  peril;  and  therefore  a  holder  who  took  the  note  after  it 
became  due  is  open  to  many  of  the  defences  which  the  promisor 
could  have  made  against  the  party  from  whom  the  holder  took 
it ;  because,  having  notice  that  the  bill  or  note  is  dishonored,  ho 
ought  to  have  ascertained  whether  any,  and,  if  so,  what  defence 
could  be  set  up. 

So,  too,  if  an  indorsee  takes  the  note  or  bill  before  it  is  due, 
but  with  notice  or  knowledge  of  fraud  or  other  good  defence 
which  could  be  made  against  his  endorser  if  he  sued  it,  it  is  a 
general  rule  that  the  same  defence  may  be  made  against  him. 

A  note  payable  on  demand  is  considered  as  not  overdue, 
unless  very  old  indeed,  without  some  evidence  of  demand  of 
payment  and  refusal,  but  in  some  States  this  has  been  changed 
by  statute.  But  it  is  not  so  with  a  check;  for  this  should  be 
presented  without  unreasonable  delay. 

3.  Of  presentment  for  Acceptance. — It  is  most  important 
to  the  holder  of  negotiable  paper  to  know  distinctly  what  his 


THE  RIGHTS  AND  DUTIES  OF  THE  HOLDER. 


I«I 


duties  are  in  relation  to  presentment  for  acceptance  or  payment, 
and  notice  to  others  interested  in  case  of  non-acceptance  or  non- 
payment. 

It  is  always  prudent  for  the  holder  of  a  bill  to  present  it  for 
acceptance  without  delay;  for  if  it  be  accepted,  he  has  new 
security ;  if  not,  the  former  parties  are  immediately  liable ;  and 
it  is  but  just  to  the  drawer  to  give  him  as  early  an  opportunity 
as  may  be  to  withdraw  his  funds  or  obtain  indemnity  from  a 
debtor  who  will  not  honor  his  bills.  And  if  a  bill  is  payable 
at  sight,  or  at  a  certain  period  after  sight,  there  is  not  only  no 
right  of  action  against  anybody  until  presentment,  but,  if  this 
be  delayed  beyond  a  reasonable  time,  the  holder  loses  his  remedy 
against  all  previous  parties.  And  although  the  question  of 
reasonable  time  is  generally  rne  only  of  law,  yet,  in  this  con- 
nection, it  is  treated  as  so  far  i  question  of  fact,  that  it  is  sub- 
mitted to  the  jury.  There  is  no  certain  rule  determining  what 
is  reasonable  time  in  this  respect.  If  a  bill  of  exchange  be 
payable  on  demand,  it  is  not  like  a  promissory  note,  but  must 
be  presented  within  a  reasonable  time,  or  the  drawer  will  be 
discharged.  A  holder  may  put  a  bill  payable  after  sight  into 
circulation,  without  presenting  it  himself;  and  in  that  case,  if  a 
subsequent  holder  presents  it,  a  longer  delay  in  presentment 
would  be  allowed  than  if  the  first  holder  had  kept  it  in  his  own 
possession. 

The  presentment  should  be  made  during  business  hours  ; 
out  in  this  country  they  extend  through  the  day  and  until  even- 
ing, excejjt  in  the  case  of  banks.  Any  distinct  usage  established 
where  the  presentment  is  made  would  probably  be  received  in 
evidence,  and  permitted  to  affect  the  question. 

Ill  health,  or  other  actual  impediment  without  fault,  may 
excuse  delay  on  the  part  of  the  holder;  but  the  request  of  the 
drawer  to  the  drawee  not  to  accept  does  not  excuse  non-present- 
ment for  acceptance. 

Presentment  for  acceptance  should  be  made  to  the  drawee 
himself,  or  to  his  agent  authorized  to  accept.  And  when  it  is 
presented,  the  drawee  may  have  a  reasonable  time  to  consider 
whether  he  will  accept,  during  which  time  the  holder  is  justified 
:n  leaving  the  bill  with  him.     And  this  time  would  be  as  much 


1 82       NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

as  twenty-four  hours,  unless  the  mail  goes  out  before.  And  if 
the  holder  gives  more  than  twenty-four  hours  for  this  purpose, 
or  the  mail  goes  out  before,  he  should  inform  the  previous  par- 
ties of  it.  If  the  drawee  has  changed  his  residence,  the  holder 
should  use  due  diligence  to  find  him;  and  what  constitutes  due 
or  reasonable  diligence  is  a  question  of  fact  for  a  jury.  And  if 
he  be  dead,  the  holder  should  ascertain  who  is  his  personal 
representative,  if  he  has  one,  and  present  the  bill  to  him.  If 
the  bill  be  drawn  upon  the  drawee  at  a  particular  place,  it  is 
regarded  as  dishonored  if  the  drawee  has  absconded,  so  that  the 
bill  cannot  be  presented  for  acceptance  at  that  place. 

4.  Of  Presentment  for  Demand  of  Payment. — The  next 
question  relates  to  the  duty  of  demanding  payment ;  and  here 
the  law  is  much  the  same  in  respect  both  to  notes  and  to  bills. 

The  universal  rule  of  the  law-merchant  is,  that  the  indorsers 
of  negotiable  paper  are  supposed  to  agree  to  pay  it  only  if  the 
maker  or  previous  indorsers  do  not,  and  provided  due  measures 
are  taken  by  the  holder  to  get  it  paid  by  those  who  ought,  in 
the  first  place,  to  pay  it.  Every  holder  of  negotiable  paper  can 
hold  it  as  long  as  he  likes,  and  not  lose  his  claim  against  the 
maker  of  a  note,  or  the  aceeptor  of  a  bill,  unless  he  holds  it  more 
than  six  years,  and  the  Statute  of  Limitations  bars  his  claim. 
The  reason  is,  that  the  maker  or  acceptor  promises  directly,  and 
not  merely  to  pay  if  another  does  not.  But  every  indorser  of  a 
note  or  bill,  and  every  drawer  of  a  bill,  only  promises  to  pay  if 
a  maker  or  acceptor  or  some  previous  indorser  does  not.  ]  f 
there  is  a  bill  of  exchange  with  six  indorsers,  the  last  promises 
in  law  to  pay  it  only  if  the  acceptor,  the  drawer,  and  the  five 
previous  indorsers  do  not  pay.  He  has  therefore  a  right  that  a 
demand  according  to  law  should  be  made  against  every  one  of 
these  persons,  and  that  their  refusal  to  pay  should  be  notified 
to  him,  forthwith,  so  that  he  may  secure  himself  if  he  can.  And 
the  law-merchant  is  very  rigorous  and  precise  in  defining  what 
demand  should  be  made  by  the  holder,  and  when  and  how 
demand  should  be  made  on  every /r/<9r  party,  in  order  to  hold 
any  siibscqiicnt  party  ;  and  also  as  to  what  notice  of  the  demand 
and  refusal  of  the /rz^?/- party  should  be  given  to  any  subsequent 
party  to  whom  the  holder  looks  for  payment. 


THE  RIGHTS  AND  DUTIES  OF  THE  HOLDER. 


^S3 


A  demand  is  sufficient  if  made  at  the  usual  residence  or  place 
of  business  of  the  payer,  either  of  himself,  or  of  an  agent  author 
ized  to  pay  ;  and  this  authority  may  be  inferred  from  the  habit 
of  paying,  especially  if  the  agent  be  a  child,  a  wife,  or  a  servant. 
The  demand  should  not  be  made  in  the  street,  although  a 
demand  tlien  would  probably  be  held  good,  unless  objected  to  at 
the  time  because  made  there.  When  a  demand  is  made,  the  bil] 
or  note  should  be  exhibited;  and  if  lost,  a  copy  should  be  exhib 
ited,  although  this  is  not  absolutely  necessary.  And  when  a 
payer  calls  on  the  holder,  and  declares  to  him  that  he  shall  not 
pay,  and  desires  him  to-  give  notice  to  the  indorsers,  this  consti- 
tutes a  d@mand  and  refusal,  provided  this  declaration  be  made 
at  the  maturity  of  the  paper ;  but  not  if  it  was  made  before 
maturity,  because  the  payer  may  change  his  intention. 

Bankruptcy  or  insolvency  of  the  payer  is  no  excuse  for  non- 
demand;  although  the  shutting  up  of  a  bank  may  be  regarded 
as  a  refusal  to  all  their  creditors  to  pay  their  notes.  Abscond- 
ing of  the  payer  is  generally  a  sufficient  excuse;  but  if  thepayei" 
has  shut  up  his  house,  the  holder  must  nevertheless  inquire  after 
him,  and  find  him,  if  he  can  by  proper  efforts.  Even  in  case  of 
absconding,  it  is  always  better  to  go  through  the  formality  oi. 
making  a  demand  at  the  payer's  last  residence  or  place  of  busi- 
ness ;  and  this  is  held  necessary  in  Massachusetts.  If  the  payer 
be  dead,  demand  should  be  made  at  his  house,  unless  he  hava 
personal  representatives,  and  in  that  case,  of  them.  And  if  th'\; 
holder  die,  presentment  should  be  made  by  his  personal  repre- 
sentatives ;  that  is,  by  his  executor  or  administrator. 

If  the  drawer  has  no  effects  in  the  hands  of  the  drawee,  and 
has  no  arrangement  or  understanding  which  gives  him  a  right 
to  draw,  non-presentation  for  payment  is  not  a  defence  which  he 
can  make  if  sued  on  the  bill. 

Impossibility  of  presenting  a  bill  for  payment,  without  the 
fault  of  the  holder,  as  the  actual  loss  of  a  bill,  or  the  like,  will 
excuse  some  delay  in  making  a  demand  for  payment ;  but  not 
more  than  the  circumstances  require.  And  the  mere  mistake 
of  the  holder  as  to  the  time,  place,  person  and  manner,  is  no 
excuse,  because  he  has  no  right  to  make  mistakes  to  the  i-iury 
of  other  people. 


1 84       NOTES  OF  HAXD,  BILLS  OF  EXCHANGE,  ETC. 

In  this  country,  all  negotiable  paper  payable  at  a  time  cer 
tain  is  entitled  to  grace,  which  here  means  three  days'  delay  of 
payment,  unless  it  be  expressly  stated  and  agreed  that  there 
shall  be  no  grace  ;  and  a  presentment  for  payment  before  the 
last  day  of  grace  is  premature,  the  note  not  being  due  until 
then.  If  the  last  day  of  grace  falls  on  Sunday,  or  on  a  legal 
holiday,  the  note  is  due  on  the  Saturday,  or  other  day  before  the 
holiday.  But  if  there  be  no  grace,  and  the  note  falls  due  on 
a  Sunday,  or  other  holiday,  it  is  not  payable  until  the  next  day. 
At  the  close  of  the  chapter  we  give  an  abstract  of  the  laws  of 
all  the  States  concerning  days  of  grace  and  holidays. 

Generally,  if  a  bill  or  note  be  payable  in  or  after  a  certain 
number  of  days  from  date,  sight,  or  demand,  in  counting  these 
t  lays,  the  day  of  date,  sight,  or  demand  is  excluded,  and  the 
ilay  on  which  it  falls  due  included.  And  the  law  would  supply 
vhe  word  "/I'i?;;/,"  etc.,  if  the  word  were  not  used.  Thus,  a  note 
dated  January  i,  and  payable  in  "  twenty  days,"  would  be  held 
[payable  in  twenty  days  (and  three  days'  grace)  after  the  day  of 
the  date  ;  that  is,  on  the  24th.  If  a  note  is  made  payable  in  one 
vir  more  nionths,  this  means  calendar  months,  whether  shorter 
or  longe'-.  If  made  on  the  13th  of  December,  and  payable  in 
two  months,  it  is  payable  on  the  13th  of  February  and  grace, 
that  is,  on  the  i6th.  But  if  so  many  days  are  named,  they  must 
be  counted,  whether  they  are  more  or  less  than  a  month.  Thus, 
if  the  above  note  were  payable  in  sixty  days,  it  would  be  due  on 
:he  nth  and  grace,  or  on  the  14th  of  February.  If  dated  13th 
January,  and  payable  in  sixty  days,  it  would  be  due  on  the  14th 
of  March,  with  grace,  or  on  the  17th. 

Although  payment  must  be  demanded  promptly,  that  is,  on 
the  day  on  which  it  is  due,  it  need  not  be  done  instantly  ;  a  holder 
has  all  the  business-part  of  the  day  in  which  the  bill  or  note 
falls  due  to  make  his  demand  in. 

Bills  and  notes  payable  on  demand  should  be  presented  for 
payment  within  a  reasonable  time.  If  said  to  be  "  on  interest," 
this  strengthens  the  indication  that  they  were  intended  to  remain 
foi-  a  time  unpaid  and  undemanded.  But  to  hold  indorsers,  they 
should  still  be  presented  within  whatever  time  circumstances 
may  make  a  reasonable  time  ;  and  this  is  such  a  time  as  th<' 


THE  RIGHTS  AND  DUTIES  OE  THE  HOLDER.         185 

interests  and  safety  of  all  concerned  may  require  ;  and  it  may 
be  a  few  dayS;  or  even  one  or  two  weeks.  A  bill  or  note  in 
which  no  time  of  payment  is  expressed  is  held  to  be  payable  on 
demand.     And  evidence  to  prove  it  otherwise  is  inadmissible.^ 

The  holder  of  a  check  should  present  it  at  once ;  for  the 
drawer  has  a  right  to  expect  that  he  will ;  it  should,  therefore, 
be  presented,  or  forwarded  for  presentment,  in  the  course  of  the 
day  following  that  in  which  it  was  received,  or,  upon  failure  of 
the  bank,  the  holder  will  lose  the  remedy  he  would  otherwise 
have  had  against  the  person  from  whom  he  receives  it.  If  the 
drawer  of  the  check  had  no  funds,  he  is  liable  always. 

iivery  demand  of  payment  should  be  made  at  the  proper 
place,  which  is  either  the  place  of  residence  or  of  business  of  the 
payer,  and  within  the  proper  hours  of  business.  If  made  at  a 
bank  after  hr-irs  of  business,  if  the  officers  are  there,  and  refuse 
payment  for  want  of  funds,  the  demand  is  sufficient. 

A  note  payable  at  a  particular  place  should  be  demanded  at 
that  place  ;  and  a  bill  drawn  payable  at  a  particular  place  should 
he  demanded  there,  in  order  to  charge  the  drawer  of  a  bill,  and 
tV.e  indorsers  of  a  bill  or  note.  But  in  this  country  an  action 
r.iay  be  maintained  against  the  maker  or  acreptor  without  such 
demand  ;  but  the  defendant  may  discharge  himself  of  damages 
gnd  costs  beyond  the  amount  of  the  paper,  by  showing  that  he 
v'.'as  ready  at  that  place  with  funds.  If  a  note  is  payable  at  any 
of  several  different  places,  presentment  at  any  one  of  them  will 
be  sufficient.  If  a  bill  which  is  drawn  jDayable  generally,  be 
accepted  payable  at  a  particular  place,  the  holder  may  and 
should  so  far  regard  this  as  non-acceptance,  that  he  should 
protest  and  give  notice.  But  if  this  limited  acceptance  is 
assented  to  and  received,  it  must  be  complied  with  by  the  holder, 
and  the  bill  must  be  presented  for  payment  at  that  place,  or  the 
drawer  and  indorsers  are  discharged. 

If  payable  at  a  banker's,  or  at  the  house  or  counting-room 
of  any  person,  and  such  banker  or  person  becomes  the  owner  at 
maturity,  this  is  demand  enough  ;  and  if  there  are  no  funds 
deposited  with  him  for  the  payment,  this  is  refusal  enough.  If 
any  nouse  be  designated,  a  presentment  to  any  person  there,  or 
at  the  door  if  the  house  be  shut  up,  is  enough. 


1 86       NOTES  OF  HAND,  BILLS   OF  EXCHANGE,  ETC. 

If  this  direction  be  not  in  the  body  of  the  note,  but  added  at 
the  close,  or  elsewhere,  as  a  memorandum,  it  is  not  part  of  the 
contract,  and  should  not  be  attended  to. 

If  the  payer  has  changed  his  residence,  he  should  be  sought 
for  with  due  diligence  ;  and,  if  he  has  absconded,  it  is  better  to 
make  the  demand  at  his  last  place  of  residence  or  business. 

Where  a  bill  or  note  is  not  presented  for  payment,  or  not 
presented  at  the  time,  or  to  the  person,  or  in  the  place,  or  in  the 
way,  required  by  law,  all  parties  but  the  acceptor  or  maker  are 
discharged,  for  the  reasons  before  stated. 

5.  Of  Protest  and  Notice. — If  a  bill  of  exchange  be  not 
accepted  when  properly  presented  for  that  purpose,  or  if  a  bill 
or  note,  when  properly  presented  for  payment,  be  not  paid,  the 
holder  has  a  further  duty  to  perform  to  all  who  are  responsible 
for  payment.  In  case  of  non-payment  of  a  foreign  bill,  there 
should  be  a  regular  protest  by  a  public  notary  ;  but  this  is  not 
strictly  necessary  in  the  case  of  an  inland  bill,  or  a  promissory 
note,  whether  foreign  or  inland.  But  in  practice,  all  bills  if  nci: 
accepted,  and  all  bills  and  notes  if  unpaid,  are  protested.  By  a 
foreign  bill  is  meant  a  bill  drawn  in  one  State  or  country,  and 
payable  in  another.  But  notice  of  non-payment  should  be  given 
to  all  antecedent  parties,  equally,  and  in  tie  same  way,  in  Ih'i 
case  of  both  bills  and  notes. 

The  demand  and  protest  must  be  made  according  to  the  laws 
of  the  place  where  the  bill  is  payable.  It  shouid  be  made  by  \ 
notary-public,  who  should  present  the  bill  himself;  but,  if  there 
be  no  notary -public  in  that  place  or  within  reasonable  reach,  it 
may  be  made  by  any  respectable  inhabitant  in  the  presence  of 
witnesses. 

The  protest  should  be  noted  on  the  day  of  demand  and 
refusal  ;  and  may  be  filled  up  afterwards,  even  so  late  as  at  the 
trial. 

The  loss  of  a  bill  is  not  a  sufficient  excuse  for  not  protesting 
it.  But  a  subsequent  promise  to  pay  by  a  drawer  or  indorser,  if 
made  with  knowledge  of  the  facts,  is  held  to  imply,  or  be  equal 
to,  a  previous  protest  and  notice  to  him. 

The  notarial  seal  is,  of  itself,  evidence  of  the  dishonor  of  a 
foreign  bill,  but  not  of  an  inland  bill.     And  no  collateral  state- 


THE  RIGHTS  AND  DUTIES  OF  THE  HOLDER.        1S7 

ment  in  the  certificate  is  evidence  of  the  fact  therein  stated ; 
thus  the  statement  by  a  notary,  that  the  drawee  refused  to 
accept  or  pay  because  he  had  no  funds  of  the  drawer,  is  no  evi- 
dence  of  the  absence  of  such  funds. 

Notice  must  be  given  even  to  one  who  has  knowledge.  No 
particular  form  is  necessary ;  it  may  be  in  writing,  or  oral ;  all 
that  is  absolutely  essential  is,  that  it  should  designate  the  note 
or  bill  with  sufficient  distinctness,  and  state  that  it  has  been 
dishonored;  and  also  that  the  party  notified  is  looked  to  for  pay- 
ment ;  but  it  has  been  held  that  the  notice  to  the  party  bound  to 
pay,  when  given  by  the  immediate  holder  of  the  bill,  sufficiently 
implies  that  he  is  looked  to.  Notice  of  protest  for  non-payment 
is  sufficient  notice  to  indorsers  of  demand  and  refusal.  How  dis- 
tinctly the  note  or  bill  should  be  described  cannot  be  precisely 
defined.  It  is  enough  if  there  be  no  such  looseness,  ambiguity, 
or  misdescription  as  might  mislead  a  man  of  ordinary  intelli- 
gence ;  and  if  the  intention  was  to  describe  the  t"ue  note,  and 
the  party  notified  was  not  actually  misled,  this  wouia  always  be 
enough. 

The  riotice  need  not  state  for  whom  pavment  is  demanded, 
nor  where  the  note  is  lying;  and  even  a  misstatement  in  this 
respect  may  not  be  material  if  it  do  not  actually  mislead. 

No  copy  of  the  protest  need  be  sent  to  indorsers ;  but 
information  of  the  protest  should  be  given. 

If  the  letter  be  properly  put  into  the  post-office,  any  mis 
carriage  of  the  mail  does  not  affect  the  party  giving  notice. 
The  address  should  be  sufficiently  specific.  Only  the  surname, — 
as  "  Mr.  Ames," — especially  if  sent  to  a  large  city,  would  not, 
in  general,  be  enough.  If  a  letter,  however  generally  directed, 
can  be  shown  to  have  reached  the  right  person  at  the  right 
time,  it  is  sufficient.  The  postmarks  are  strong  evidence  that 
the  letter  was  mailed  at  the  very  time  these  marks  indicate 
but  this  evidence  may  be  rebutted,  that  is,  contradicted. 

A  notice  not  only  may,  but  should,  be  sent  by  the  public 
post.  It  may,  however,  be  sent  by  a  private  messenger;  but  is 
not  sufficient  if  it  do  not  arrive  until  after  the  time  at  which  it 
would  have  arrived  by  mail.  It  maybe  sent  to  the  town  where 
the  party  resides,  or  to  another  towm,  or  to  a  more  distant  post- 


1 88       NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

office,  if  it  is  clear  that  he  may  thereby  receive  the  notice 
earlier.  And  if  the  notice  is  sent  to  what  the  sender  deems, 
after  due  diligence,  the  nearest  post-office,  this  is  enough.  If 
the  parties  live  in  the  same  town,  notice  should  not  be  sent  by 
mail. 

The  notice  should  be  sent  either  to  the  place  of  business,  or 
to  the  residence,  of  the  party  notified.  But  if  one  directs  a 
notice  to  be  sent  to  himself  elsewhere  than  at  home,  it  may  be  so 
sent,  and  bind  not  only  him,  but  prior  parties,  although  time  is 
lost  by  so  sending  it. 

The  notice  of  non-payment  should  be  sent  within  reasonable 
time ;  and  in  respect  to  negotiable  jDaper,  the  law-merchant 
defines  this  within  very  narrow  limits.  If  the  parties  live  in 
I. he  same  town,  notice  must  be  given  or  sent  so  that  the  party 
lo  whom  it  is  sei:t  may  receive  the  notice  in  the  course  of  the 
day  next  after  that  in  Vv'hich  the  party  sending  has  knowledge 
sf  the  fact.  If  the  parties  live  in  different  places,  the  notice 
must  be  sent  as  soon  as  by  the  first  practicable  mail  of  the 
next  day,  or  the  next  mail,  if  there  be  none  on  the  next  day. 

Each  party  receiving  notice  has  a  day,  or  until  the  next 
post  after  the  day  in  which  he  receives  it,  before  he  is  obliged 
to  send  the  notice  forward.  Thus,  if  there  be  six  indorsers, 
and  the  note  is  due  on  the  loth  of  May,  in  New  York,  and  is 
then  demanded  and  unpaid,  the  holder  may  send  it  by  any  mail 
which  leaves  N'sw  York  on  the  iith  of  May,  to  the  last 
mdorser,  wherever  he  lives;  and  that  indorser  may  send  it  to 
the  indorser  immediately  before  him,  by  any  mail  on  the  day 
after  he  receives  it ;  and  so  may  each  of  the  parties  receiving 
notice  ;  and  all  the  parties  to  whom  notice  is  sent  in  this  way 
will  be  held.  So,  too,  a  banker,  with  whom  the  paper  is 
deposited  for  collection,  is  considered  a  holder,  and  entitled  to 
a  day  to  give  notice  to  the  depositor,  who  then  has  a  day  for 
his  notice  to  antecedent  parties.  The  different  branches  of 
one  establishment  have  been  held  distinct  holders  for  this 
purpose,  and  each  to  be  entitled  to  a  day.  It  should  be  sent 
by  the  first  safe  opportunity. 

Neither  Sunday  nor  any  legal  holiday  is  to  be  computed  in 
reckoning  the  time  within  which  notice  must  be  s:iven. 


THE  RIGHTS  A  .YD  DUTIES  OF  THE  HOLDER.        iSg 

There  is  no  presumption  of  notice  ;  and  the  plaintiff  must 
prove  that  it  was  given,  and  was  sufficient.  Thus,  proving 
that  it  was  given  in  "two  or  three  days  "  is  insufficient,  if  two 
'would  have  been  right,  but  three  not. 

Notice  should  be  given  only  by  a  party  to  the  instrument, 
who  is  liable  upon  it,  and  not  by  a  stranger ;  and  it  has  been 
held  that  nbtice  could  not  be  given  by  a  first  indorser,  who,  not 
having  been  notified,  was  not  himself  liable.  A  notice  by  any 
party  liable  will  operate  to  the  benefit  of  all  antecedent  or 
subsequent  parties ;  that  is,  will  hold  them  all  to  the  original 
holder  of  the  note,  if  the  original  holder  gave  notice  properly 
to  the  party  nearest  to  him.  The  notice  may  be  given  by  any 
authorized  agent  of  a  party  who  could  himself  give  notice. 

Notice  must  be  given  to  every  antecedent  party  who  is  to 
be  held.  And  we  have  seen  that  this  may  be  given  by  a  holder 
to  the  first  party  liable,  and  by  him  to  the  next,  &c.  But  the 
holder  may  always  give  notice  to  all  antecedent  parties  ;  and  it 
is  always  prudent,  and  in  this  country,  usual,  to  do  so.  For  the 
holder  loses  all  remedy  against  all  those  who  are  discharged  by 
the  failure  of  any  one  receiving  notice  to  transmit  it  properly. 
But  if  a  holder  undertakes  to  notify  all  the  antecedent  parties, 
he  must  notify  all  as  soon  as  he  was  obliged  to  notify  ^he  party 
nearest  to  him  ;  that  is,  the  day  after  the  dishonor  of  the  note. 
We  mean  by  this,  that  every  party  has  a  day ;  so  that,  if  there 
be  six  indorsers,  if  the  first  indorser  is  notified  on  the  seventh 
day  from  the  dishonor,  it  is  enough,  if  the  holder  took  his  da / 
to  notify  the  sixth  indorser,  and  that  indorser  his  day  to  notify 
the  fifth,  and  so  on.  But  the  holder  has  nobody's  day  but  his 
own  ;  and  if  he  undertakes  to  notify  all  the  parties,  he  must 
notify  them  all  on  the  first  day  after  the  non-payment. 

Notice  may  be  given  personally  to  a  party,  or  to  his  agent 
authorized  to  receive  notice,  or  left  in  writing  at  his  home  or 
place  of  business.  If  the  party  to  be  notified  is  dead,  notice 
should  be  given  to  his  personal  representatives.  A  notice 
addressed  to  the  "legal  representative  of,"  &c.,  and  sent  to  the 
town  in  which  the  deceased  party  resided  at  his  death,  has 
been  held  sufficient.  But  a  notice  addressed  to  the  party 
himself,  when  known  to  be  dead,  or  to   "  the  estate  of,"  &c.. 


I  go       NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

would  not  be  of  itself  sufficient,  but  might  become  so  with 
evidence  that  the  administrator  or  executor  actually  received 
the  notice. 

If  two  or  more  parties  are  jointly  liable  on  a  bill  as  partners, 
notice  to  one  is  enough  ;  but,  if  the  indorsers  are  not  partners, 
notice  should  be  given  to  each. 

One  transferring  by  delivery,  without  indorsement,  a  note  or 
bill  payable  to  bearer,  is  not  generally  entitled  to  notice  of  non- 
payment, because,  generally,  he  is  not  liable  to  pay  such  paper ; 
but  if  the  circumstances  of  the  case  are  such  as  to  make  him 
liable,  then  he  must  have  notice,  but  is  entitled  not  to  the 
exact  notice  of  an  indorser,  but  only  to  such  reasonable  notice 
as  is  due  to  a  guarantor.  If,  for  instance,  the  paper  was  trans- 
ferred as  security,  or  even  in  payment  of  a  pre-existing  debt 
this  debt  revives  if  the  bill  or  note  be  dishonored  ;  and  there 
fore  there  must  be  notice  given  of  the  dishonor. 

In  general,  a  guarantor  of  a  bill  or  note,  or  debt,  is  not 
entitled  to  such  strict  and  exact  notice  as  an  indorser  is  entitled 
to,  but  only  to  such  notice  as  shall  save  him  from  actual  injury ; 
and  he  cannot  make  the  want  of  notice  his  defence,  unless  he 
can  show  that  the  notice  was  unreasonably  withheld  or  delayed, 
and  that  he  has  actually  sustained  injury  from  such  delay  or 
want  of  notice.  If  an  indorser  give  also  a  bond,  or  his  own 
note,  to  pay  the  debt,  he  is  not  discharged  from  his  bond  or 
note  by  want  of  notice. 

In  general,  all  parties  to  negotiable  paper,  who  are  entitled 
to  notice,  are  discharged  by  want  of  notice.  The  law  presumes 
them  to  be  injured,  and  does  not  put  them  to  proof. 

The  right  to  notice  may  be  waived  by  any  agreement  to 
that  effect  prior  to  the  maturity  of  the  paper.  It  is  quite 
common  for  an  indorser  to  write,  **  I  waive  notice,"  or,  "  I  waive 
demand,"  or  some  words  to  this  effect.  It  should,  however,  be 
remembered,  that  these  rights  are  independent,  and  one  does 
not  imply  the  other.  A  waiver  of  notice  of  non-payment  does 
not  imply  a  waiver  of  demand  ;  therefore,  if  an  indorser  writes 
on  the  note,  "  I  waive  notice,"  still  he  will  be  discharged  if 
there  be  not  a  due  demand  on  the  maker.  And  it  has  been 
held  that  a  waiver  of  protest  is  a  waiver   of  demand,  but  not  of 


THE  RIGHTS  AND  DUTIES  OE  THE  IXDORSER.       i^j 

notice.  So  if  a  drawer  countermands  his  order,  the  bill  should 
still  be  presented,  but  notice  of  dishonor  need  not  be  given  to 
the  drawer.  Or,  if  a  drawer  has  no  funds,  and  nothing  equiva- 
lent to  funds,  in  the  drawee's  hands,  and  would  have  no  remedy 
against  the  drawee  or  any  one  else,  as  the  drawer  cannot  be 
prejudiced  by  want  of  notice,  it  is  not  necessary  to  give  him 
notice.  But  the  indorser  must  still  be  notified ;  and  a  drawer 
for  the  accommodation  of  the  accepter  is  entitled  to  notice, 
because  he  might  have  a  claim  upon  the  acceptor. 

Actual  ignorance  of  a  party's  residence  justifies  the  delay 
necessary  to  find  it  out,  and  no  more ;  and  after  it  is  discovered, 
the  notifier  has  the  usual  time. 

Death,  or  severe  illness,  of  the  notifier  or  his  agent,  is  an 
(jxcuse  for  delay  ;  but  the  death,  bankruptcy,  or  insolvency  of 
the  drawee  of  a  bill  is  no  excuse. 

As  the  right  to  notice  may  be  waived  before  maturity,  so 
the  want  of  notice  may  be  cured  afterwards  by  an  express 
promise  to  pay  ;  and  an  acknowledgment  of  liability,  or  a  pay- 
ment in  part,  is  evidence,  but  not  conclusive  evidence,  of 
notice  ;  the  jury  may  '^^i-k  this  conclusion  from  part  payment, 
but  are  not  bound  to,  even  it  the  evidence  be  not  rebutted.  I- 
the  promise  be  conditional,  and  the  condition  be  not  complies 
with,  the  promise  has  been  held  to  be  still  evidence  of  protest 
Nor  is  it  sufficient  to  avoid  such  promise,  that  it  was  made  in 
ignorance  of  the  law ;  but  it  is  void  if  made  in  ignorance  of  the 
fact  of  non-notice. 

SECTION  VI. 

THE   RIGHTS    AND    DUTIES    OF   THE    INDORSER. 

Only  a  note  or  bill  payable  to  a  payee  or  order  is,  strictly 
speaking,  subject  to  indorsement.  Those  who  write  their  names 
on  the  back  of  any  note  or  bill  are  indorsers  in  one  sense,  and 
.are  sometimes  called  so  ;  but  are  not  meant  in  the  law-merchant 
by  the  word  "indorsers." 

The  payee  of  a  negotiable  bill  or  note — whether  he  be  also 
maker  or  not — may  indorse  it,  and  afterwards  any  person  or  any 
number  of  persons,  may  indorse  it.  The  maker  promises  to 
pay  to  the  payee  or  his  order;  and  the  indorsement  is  an  order 


IQ2       AOTES  OF  HANI),  HILLS  OF  EXCHANGE,  ETC. 

on  the  maker  to  pay  the  indorsee,  and  the  maker's  promise  is 
then  to  pay  the  note  to  him.  Ihit  if  the  original  promise  was 
to  the  payee  or  order,  this  "or  order,"  which  is  the  negotiable 
element,  passes  over  to  the  indorsee,  though  not  written  in  the 
indorsement,  and  the  indorsee  may  indorse,  and  so  may  his 
indorsee,  indefinitely. 

Each  indorser,  by  his  indorsement,  does  two  things :  first, 
he  orders  the  antecedent  parties  to  pay  his  indorsee;  and  next, 
he  engages  with  his  indorsee,  that,  if  they  do  not  pay,  he  will. 

If  the  words  "to  order,"  or  "to  bearer,"  are  omitted  acci- 
dentally, and  by  mistake,  they  may  be  afterwards  inserted 
without  injury  to  the  bill  or  note;  and  whether  a  bill  or  note  is 
negotiable  or  not,  is  a  question  of  law. 

By  the  law-mt  rchant,  bills  and  notes  which  are  payable  to 
order  can  be  effectually  and  fully  transferred  only  by  indorse- 
ment. This  indorsement  may  be  in  blank,  or  in  full.  The 
writing  of  the  name  of  a  payee, — either  the  original  payee  or 
an  indorsee, — with  nothing  more,  is  an  indorsement  in  blank; 
and  a  blank  indorsement  makes  the  bill  or  note  transferable  by 
delivery,  in  like  manner  as  if  it  had  been  originally  payable  to 
bearer.  After  a  note  has  been  indorsed  by  a  payee,  any  person 
may  write  his  name  on  the  note  under  that  of  the  payee,  and 
be  held  as  indorser, — because  any  subsequent  holder  may  write 
over  the  name  of  the  first  indorser  a  direction  to  pay  the  note 
to  the  next  signer,  and  this  makes  the  next  signer  an  indorse'^, 
and  so  gives  him  a  right  to  indorse  ;  and  he  or  any  holder  may 
write  over  his  name  an  order  to  pay  the  holder,  or  anybody 
else.  If  the  indorsement  consist  not  only  of  the  name,  but  of 
an  order  above  the  name  to  pay  the  note  to  some  specified  per- 
son, then  it  is  an  indorsement  in  full,  and  the  note  can  be  paid 
to  no  one  else  unless  that  person  indorses  it ;  nor  can  the 
property  in  it  be  fully  transferred,  except  by  his  indorsement; 
and  his  indorsee  may  again  indorse  it  in  blank  or  in  full.  If  the 
indorsement  is.  Pay  to  A  B  only,  or  in  equivalent  words,  A  B  is 
indorsee,  but  cannot  indorse  it  over. 

Any  holder  for  value  of  a  bill  or  note  indorsed  in  blank, 
whether  he  be  the  first  indorsee  or  one  to  whom  it  has  come 
through   many  hands,  may  write  over  any  name  indorsed  an 


THE  RIGHTS  AND  DUTIES  OE  THE  INDORSEE.       1Q3 

order  to  pay  the  contents  to  himself;  and  this  makes  it  a  special 
indorsement,  or  an  indorsement  in  full.  This  is  often  done  for 
security ;  that  is,  to  guard  against  the  loss  of  the  note  by 
accident  or  theft.  For  the  rule  of  law  is,  that  negotiable  paper 
transferable  by  delivery  (whether  payable  to  bearer  or  indorsed 
in  l:)lank)  is,  like  money,  the  property  of  whoe\'er  receives  it  in 
good  faith.  The  same  rule  has  been  extended  in  England  to 
exchequer  bills;  to  public  bonds  payable  to  bearer ;  and  to  East 
India  bonds;  and  we  think  it  would  extend  here  to  our  railroad 
and  other  corporation  bonds,  and,  perhaps,  to  all  such  instru- 
ments as  are  payable  to  bearer,  whether  sealed  or  not,  and 
whatever  they  may  be  called.  If  one  has  such  an  instrument, 
and  it  is  stolen,  and  the  thief  passes  it  for  consideration  to  0 
lyond  fide  holder,  th'.s  holder  acquires  a  legal  right  to  it,  becaus-^ 
the  property  and  possession  go  together.  But  if  the  bill  o» 
note  be  specially  indorsed,  no  person  can  acquire  any  property 
in  it,  except  by  the  indorsement  of  the  special  indorsee. 

It  may  be  we'l  to  remark  here,  that  the  finder  of  negotiabli. 
paper,  as  of  all  other  property,  ought  to  make  reasonable  e- 
deavors  to  discover  the  owner,  and  is  entitled  to  use  the  thin^^, 
found  as  his  own  on^y  when  he  has  made  such  endeavors- 
unsuccessfully.  If  he  conceals  the  fact  of  finding,  and  appro 
priates  the  thing  to  his  own  use,  he  is  liable  to  the  charge  of 
larceny  or  theft. 

The  written  transfer  of  negotiable  paper  is  called  an  indorse 
ment,  because  it  is  almost  always  written   on  the  back  of  the 
note;  but  it  has  its  full  legal  effect  if  written  on  the  face. 

Joint  payees  of  a  bill  or  note,  who  are  not  partners,  must  all 
join  in  an  indorsement. 

An  indorser  may  always  prevent  his  flwn  responsibility  by 
writing  "without  recourse,"  or  other  equivalent  words,  over  his 
indorsement ;  and  any  bargain  between  the  indorser  and  indor. 
see,  written  or  oral,  that  the  indorser  shall  not  be  sued,  i§ 
available  by  him  against  that  indorsee ;  but  he  cannot  make 
this  defence  against  subsequent  indorsees  who  had  no  notice  of 
the  bargain  before  they  took  the  note. 

Every  indorsement  and  acceptance  admits  conclusively  the 
genuineness  of  the  signature  of  every  party  who  has  put  his 
13 


194       A'OTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

name  upon  the  bill  previously  in  fact,  and  who  is  also  previous 
in  order.  By  this  is  meant,  that  if  an  indorser — say  a  third 
indorser — is  sued,  he  cannot  defend  himself  by  saying  that  the 
names  of  the  maker  and  first  and  second  indorsers,  or  either  of 
them,  were  forged,  because  by  indorsing  it  himself  he  gives  his 
indorsee  a  right  to  believe  that  the  previous  signatures  vi^ere 
genuine.  And  an  acceptor  cannot  say  that  his  drawer's  name 
is  forged ;  but  he  may  say  that  an  indorsement  which  was  on 
the  bill  when  he  accepted  it  was  forged,  because  an  indorsement 
of  a  bill  comes  properly  and  in  order  of  Imv  after  acceptance. 

If  a  holder  strikes  out  an  indorsement  by  mistake,  he  may 
restore  it;  if  en  purpose,  the  indorser  is  permanently  dis- 
charged. 

A  holder  m^^y  bring  his  action  against  any  prior  indorser, 
either  by  making  title  through  all  the  subsequent  indorsements, 
or  by  filling  any  blank  indorsement  specially  to  himself,  and 
suing  accordingly;  but  then  he  invalidates  all  the  indorsements 
which  are  subsequent  to  that  which  he  has  made  special  to 
himself. 

One  may  make  a  note  or  bill  payable  to  his  own  order,  and 
indorse  it  in  blank ;  and  this  is  now  very  common  in  our  com^ 
mercial  cities,  because  the  holder  of  such  a  bill  or  note  can 
transfer  it  by  delivery,  and  it  needs  not  his  indorsement  tc» 
make  it  negotiable  further.  A  note  to  the  maker's  own  order, 
if  not  indorsed  by  him,  is,  strictly  speaking,  of  no  force  against 
him.  But  there  is  some  disposition  in  the  courts  to  say  that  a 
holder  of  such  note  may  sue  the  maker  as  if  the  note  were  to 
bearer. 

A  transfer  by  delivery,  without  indorsement,  of  a  bill  or 
note  payable  to  bearer,  or  indorsed  in  blank,  does  not  generally 
make  the  transferrer  responsible  to  the  transferree  for  the  pay- 
ment of  the  instrument.  Nor  has  the  transferree  a  right  to  fall 
tack,  in  case  of  non-payment,  upon  the  transferrer  for  the 
original  consideration  of  the  transfer,  if  the  bill  were  trans- 
ferred in  good  faith,  in  exchange  for  money  or  goods;  for  such 
transfer  would  be  held  to  be  a  sale  of  the  bill  or  note,  and  the 
purchaser  takes  it  with  all  risk. 

An  indorsement  may  be  made  on  the  paper  before  the  bill 


THE  RIGHTS  AND  DUTIES  OF  THE  ACCEPTOR.      195 

or  note  is  drawn;  and  such  indorsement,  says  Lord  Mansfield, 
"is  a  letter  of  credit  for  an  indefinite  sum,  and  it  will  not  lie  in 
the  indorser's  mouth  to  say  that  the  indorsements  were  not 
regular."  The  same  rule  applies  to  an  acceptance  on  blank 
paper.  So  an  indorsement  may  be  made  after  or  before  accept- 
ance, though  strictly  proper  only  after. 

A  bill  or  note  once  paid  at  or  after  maturity,  ceases  to  be 
negotiable,  in  reference  to  all  who  had  been  discharged  by  the 
payment.  If  issued  again,  it  is  like  a  new  note  without  their 
names.  If  a  bill  or  note  is  paid  before  it  is  due,  it  is  valid  in 
the  hands  of  a  subsequent  bond  fide  indorsee,  and  must  be  paid 
to  him. 

A  portion  of  a  negotiable  bill  or  note  cannot  be  transferred, 
so  as  to  give  the  transferree  a  right  of  action  for  that  portion  in 
his  own  name.  But  if  the  bill  or  note  be  partly  paid,  it  may  be 
indorsed  over  for  the  balance. 

After  the  death  of  a  holder  of  a  bill  or  note,  his  executor  or 
administrator  may  transfer  it  by  his  indorsement.  The  husband 
who  acquires  a  right  to  a  bill  or  a  note  which  was  given  to  the 
wife  either  before  or  after  marriage,  may  indorse  it. 

If  the  rule  that  the  same  party  cannot  be  plaintiff  and 
defendant,  prevents  the  action,  as  where  A,  B,  &  Co.  hold  the 
note  of  A,  C,  &  Co.,  so  that  if  a  suit  were  brought  A  would  be 
one  of  the  plaintiffs  and  one  of  the  defendants  also,  which 
cannot  be,  A,  B,  &  Co.  may  jndorse  the  note  to  D,  who  may 
then  sue  A,  C,  &  Co. 

SECTION  VII. 

THE   RIGHTS    AND    DUTIES    OF    THE    ACCEPTOR. 

AccEPTANXE  applies  to  bills,  and  not  to  notes.  It  is  an 
engagement  of  the  person  on  whom  the  bill  is  drawn  to  pay  it 
according  to  its  tenor.  The  usual  way  of  entering  into  this 
agreement,  or  of  accepting,  is  by  the  drawee's  writing  his  name 
across  the  face  of  the  bill,  and  writing  over  it  the  word  "ac- 
cepted." But  any  other  word  of  equivalent  meaning  may  be 
used,  and  it  may  be  written  elsewhere,  and  it  need  not  be  signed, 
or  the  drawee's  name  alone  on  the  bill  may  be  enough  ;  a  writ- 
ten promise  to  accept  a  future  bill,  if  it  distinctly  define  and 


196       A'OTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

describe  that  very  bill,  has  been  held  in  this  country  as  the 
equivalent  of  an  acceptance,  if  the  bill  was  taken  on  the  credit 
of  such  promise. 

A  banker  is  liable  to  his  depositor  without  acceptance  of  his 
checks,  if  he  refuses  to  pay  checks  drawn  against  funds  in  his 
hands. 

If  a  bill  is  accepted  by  a  part  only  of  those  jointly  responsi- 
ble, or  joint  drawees,  it  may  be  treated  by  the  holder  as  dishon- 
ored ;  but  if  not  so  treated,  the  parties  accepting  will  be  bound. 

An  acceptance  may  be  made  after  maturity,  and  will  be 
treated  as  an  acceptance  to  pay  on  demand. 

The  acceptance  may  be  cancelled  by  the  holder ;  and  if  this 
cancelling  be  voluntary  and  intended,  it  is  complete  and  effectual ; 
but  if  made  by  mistake,  by  him  or  other  parties,  and  this  mistake 
can  be  shown,  the  acceptor  is  not  discharged.  And  if  the  ca^ 
celling  be  by  a  third  party,  it  is  for  the  jury  to  say  whether  th^ 
holder  authorized  or  assented  to  it. 

If  a  qualified  acceptance  be  offered,  the  holder  may  receive 
or  refuse  it.  If  he  refuses  it,  he  may  treat  the  bill  as  dishon. 
ored ;  if  he  receives  it,  he  should  notify  antecedent  parties,  and 
obtain  their  consent ;  without  which  they  are  not  liable.  But  if 
he  protests  the  bill  as  dishonored,  for  this  reason,  he  cannot 
hold  the  acceptor  upon  his  qualified  acceptance. 

A  bill  drawn  on  one  incompetent  to  contract,  as  from  infancy, 
marriage,  or  lunacy,  may  be  treated  by  the  holder  as  dishon- 
ored. 

A  bill  can  be  accepted  only  by  the  drawee, — in  person  or  by 
his  authorized  agent, — or  by  some  one  ivJio  accepts  for  honor. 

SECTION  VIII. 

ACCEPTAXCE  OR  PAYMF.XT  FOR  HONOR. 

If  a  bill  be  protested  for  non-acceptance  or  for  non-payment, 
any  person  may  accept  it,  or  pay  it  for  the  honor  either  of  the 
drawer  or  of  any  indorser.  This  he  usually  does  by  going  with 
the  bill  before  the  notary  public  who  protested  the  bill,  and  there 
declaring  that  he  accepts  or  pays  the  bill  for  Jionor ;  and  he 
should  designate  for  whose  honor  he  accepts  or  pays  it,  at  the 
time,  before  the  notary  public,  and  it  should  be  noted  by  him. 


ACCEPTANCE  OF  PAYMENT  FOR  HONOR. 


197 


A  general  acceptance  supra  protest  (which  is  the  phrase  used 
Doth  by  merchants  and  in  law,  meaning  iipon  or  after  protest) 
for  honor,  is  taken  to  be  for  honor  of  the  drawer.  The  drawee 
himself,  refusing  to  accept  it  generally,  may  thus  accept  for  the 
honor  of  the  drawer  or  an  indorser.  And  after  a  bill  is  accepted 
for  honor  of  one  party,  it  may  be  accepted  by  another  person  for 
honor  of  another  party.  And  an  acceptance  for  honor  may  be 
made  at  the  intervention  and  request  of  the  drawee. 

No  holder  is  obliged  to  receive  an  acceptance  for  honor;  he 
may  refuse  it  wholly.  If  he  receive  it,  he  should,  at  the 
maturity  of  the  bill,  present  it  for  payment  to  the  drawee,  who 
may  have  been  supplied  with  funds  in  the  meantime.  If  not 
paid,  the  bill  should  be  protested  for  non-payment,  and  then 
presented  for  payment  to  the  acceptor  for  honor. 

The  undertaking  of  the  acceptor  for  honor  is  collateral  only; 
being  an  engagement  to  pay  if  the  drawee  does  not.  It  can 
only  be  made  for  some  party  who  \vill  certainly  be  liable  if  the 
bill  be  not  paid  ;  because,  by  an  acceptance  or  by  a  payment, 
properly  made,  for  honor,  S2ipra  protest,  such  acceptor  or  payer 
acquires  an  actual  claim  against  the  party  for  whom  he  accepts, 
or  pays,  and  against  all  parties  to  the  bill  antecedent  to  him,  for 
all  his  lawful  costs,  payments,  and  damages,  by  reason  of  such 
acceptance  or  payment.  This  is  an  entire  exception  to  the  rule 
••hat  no  person  can  make  himself  the  creditor  of  another  with- 
•nit  the  request  or  consent  of  that  other;  but  it  is  an  exception 
•established  by  the  law-merchant. 

The  reason  why  bills  of  exchange  are  sometimes  accepted  or 
paid  for  honor  is  to  save  the  party  for  whose  honor  this  is  done, 
from  the  very  heavy  damages  of  a  protested  bill. 

In  many  of  our  States  it  is  a  common  practice  to  give  a 
promissory  note,  and  include  in  it  a  confession  of  judgment,  for 
the  amount.  A  suit  may  then  be  brought  on  the  note  as  soon 
as  it  is  due  and  unpaid,  and  a  judgment  taken  out  at  once  with- 
out the  delay  of  a  trial ;  and  execution  may  issue  on  the  judg- 
ment. Sometimes  by  the  same  note  the  promisor  waives  or 
renounces  the  benefit  or  protection  of  all  exemption  laws  ;  and 
then  the  execution  may  be  satisfied  from  any  of  his  property 
that  the  sheriff  can  find. 


igS       2^0 TES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

(68.) 

Form  of  a  Judgment  Note  with  "Waiver. 
$  i8 

{Time)  after  date,  for  value  received,  promise  to 

pay  or  bearer,  dollars,  with  interest,  and 

without  defalcation  or  stay  of  execution.     And  do  hereby  confess 

judgment  for  the  above  sum,  with  interest  and  costs  of  suit,  a  release  of  all 
errors,  and  waiver  of  all  rights  to  inquisition  and  appeal,  and  to  the  benefit 
of  all  laws  exempting  real  or  personal  property  from  levy  and  sale. 

(Signatzire) 

Sometimes,  in  addition  to  the  above,  the  same  note  has  below 
it  a  power  of  attorney,  authorizing  the  attorney  whose  name  is 
put  into  the  blank  left  for  that  purpose  to  appear  in  court  for 
the  promisor,  and  confess  judgment.  Sometimes  the  power  is 
given  to  an  attorney  whom  the  parties  agree  upon,  and  then  n^i 
other  attorney  can  confess  the  judgment.  It  is,  however,  far 
more  usual,  and  better,  to  insert  the  name  of  an  attorney,  and 
add,  as  in  the  following  form,  "or  any  attorney  of  any  court  of 
record." 

Sometimes  the  note  is  followed  on  the  same  paper  by  a 
power  to  confess  judgment,  and  a  waiver  of  all  right  of  exemp 
tion  ;  both  the  power  and  the  waiver  extending  beyond  the  abovb 
written  note,  and  covering  other  notes  and  bonds  and  other 
evidence  of  debt. 

(69.) 

Judgment  Note  with  fuller  "Waiver,  and  Power  of 

Attorney. 
%  i8       . 

for  value  received,  promise 

to  pay  to  the  order  of  the  sum  of  dollars,  with 

interest,  in  {time) 

{Signature) 

Know  all  Men  by  these  Presents,  That  whereas, 
the  subscriber  now  justly  indebted  to 

upon  a  certain  promissory  note,  bearing  even  date  herewith,  for  the  sum  of 
dollars,  and  cents,  made  payable  to  the  order  of 

the  said  and  due  ,  and  may 

from  time  to  time  hereafter  become  further  or  otherwise  justly  indebted  to 
the  said  upon  bonds,  promissory  notes,  due-bills, 

and  other  written  evidences  of  debt,  made,  or  to  be  made,  indorsed  or 
accepted  by  and  held  or  owned  by  the  said 

assignee  or  assignees  hereof. 


FORMS  OF  JUDGMENT  NOTES.  jgg 

Now,  Therefore,  in  consideration  of  the  premises,  and  of  the  sum  of 
one  dollar  to  paid  by  the  said  the  receipt 

whereof  is  hereby  acknowledged  do  hereby  make,  constitute,  and 

appoint  or  any  attorney  of  any  court  of  record,  to 

be  true  and  lawful  attorney,  irrevocable,  for  and  in 

name,  place,  and  stead,  to  appear  in  and  before  any  court  of  record, 
either  in  term-time  or  in  vacation,  in  any  of  the  States  or  Territories  of  the 
United  States,  at  any  time  after  the  of  said  note, 

or  of  any  such  bond,  promissory  note,  due-bill,  or  other  written  evidence  ( £ 
debt,  so  already  made  or  to  be  made,  indorsed  or  accepted  by 

as  aforesaid,  respectively,  to  waive  service  of  process,  and 
confess  a  judgment  in  favor  of  the  said  executors, 

administrators,  assignee  or  assignees,  or  the  legal  holder  or  holders  of  said 
note  or  of  any  one  or  more  of  such  bonds,  promissory  notes,  due-bills,  or 
other  written  evidences  of  debt,  as  aforesaid,  for  so  much  money  as  shall 
bv  the  same  appear  to  be  due  or  owing  thereon,  with  interest  thereon 
according  to  the  tenor  and  effect  thereof  respectively,  together  with  costs  : 
also,  for  dollars  attorney's  fees,  to  be  added  to  the  amount  due 

or  owing  on  entering  up  judgment ;  also,  to  file  a  cognovit  for  the  amount 
that  may  be  so  due  or  owing,  including  attorney's  fees  as  aforesaid,  with  an 
agreement  therein  that  no  writ  of  error  or  appeal  shall  be  prosecuted  upon 
the  judgment  entered  up  by  virtue  hereof,  nor  any  bill  in  equity  filed  to 
restrain  or  in  any  manner  interfere  with  the  operation  of  said  judgment,  or 
any  execution  issued  or  to  be  issued  thereon,  and  to  release  all  errors  that 
may  intervene  in  the  entering-up  of  any  such  judgment  or  issuing  any  exe- 
cution thereon,  and  to  consent,  stipulate,  and  agree,  that  any  execution 
issued  or  to  be  issued  upon  such  judgment,  may  be  immediately  levied  upon, 
and  satisfied  out  of  any  personal  property  which  may  have  or  own, 

and  to  waive  and  relinquish  all  right  to  have 

personal  property  list  taken  and  levied  upon  to  satisfy  such  execution,  and 
also  to  consent  that  execution  may  issue  upon  any  such  judgment  immedi- 
ately. Hereby  ratifying  and  confirming  all  that  said  attorney  may  do 
by  virtue  hereof. 

And,  in  consideration  of  the  premises,  do  hereby  stipulate,  cove- 

nant, and  agree  with  the  said  executors,  administrators, 

and  with  the  assignee,  assignees,  or  the  legal  holder  or  holders  of  said  note, 
or  of  any  one  or  more  of  such  bonds,  promissory  notes,  due-bills,  or  other 
written  evidences  of  debt  as  aforesaid,  that  any  execution  so  issued  or  to  be 
issued  as  aforesaid,  may  first  be  levied  upon  and  satisfied  out  of  any  per- 
sonal property  which  may  have  or  own,  hereby  expressly  waiving  all 
right  to  have  personal  property  last  taken  and  levied  upon  to  satisfy, 
su^h  execution. 

Witness  hand     and  seal     this  day  of 

A.  D.  i8         . 

i^Signaiure.)     {Seal.) 

In  Presence  of 


200  NOTES  OF  HAND,  BILLS  OF  EXCHANGE,  ETC. 

(70.. 

Notarial  Protest. 

UNITED  STATES  OF    AMERICA. 

State  of  > 

CiTV  (OR  Town)  of  and  County  of  ^     ' 

Be  it  Known  that  on  this  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  eighty  ,  at  the  request  of 

I,  Notary  Public,  duly  commissioned  and  sworn,  residing  in  the 

City  (or  Town)  of  aforesaid,  did  present  the  original  {note  or  bill 

of  exchange)  hereunto  annexed  to 
and  demanded  {paytnent  or  acceptance)  thereof,  which  was  refused,  stating 

Whereupon,  I,  the  said  Notary,  at  the  request  aforesaid,  did  Protest, 
and  do  hereby  publicly  and  solemnly  Protest  against  the  Drawers  and 
Endorsers  of  the  said  {note  or  bill)  and  all  others  concerned,  for  all  ex- 
change, re-exchange,  all  costs,  damages,  and  interest,  incurred  or  to  be  in- 
curred for  want  of  {payment  or  acceptance)  of  the  same. 

And  I,  the  said  Notary,  do  hereby  certify,  that  on  the  same  day  I  depos- 
ited in  the  Post  Office  at  ,  Notices  for  the  following  persons  : 


Thus  Done  and  Protested,  in  the  City  for  Town)  of 
aforesaid  and  my  Notarial  Seal  affixed,  the  day  and  year  above  written. 

Notary  Public. 


Notice  of  Protest. 

i88  . 

Sir: 

Please  take  notice,  that  a  {note  made  by,  or  bill  of  exchange  drawn  by 
on  )  for  dollars,  dated  i88  ,  payable 

and  endorsed  by  you,  is  duly  protested  for  non-payment  {or  accept- 
ance), payment  {or  accepta?ice)  having  been  demanded  and  refused,  and  the 
holders  look  to  you  for  the  payment  thereof. 
Respectfully, 

N'otafy  Public. 
To 


ABSTRACT  OF  DA  YS  OF  GRACE  AND  H  OLID  A  VS.    2OI 


ABSTRACT  OF  THE  DAYS  OF  GRACE  AND  HOLIDAYS 
IN  ALL  THE  STATES  AND  TERRITORIES. 

ALABAMA.  —  All  negotiable  instruments  are  governed  by  the  commer- 
cial law.  There  is  no  special  legislation  on  the  subject.  Sundays,  Christ- 
mas Day,  January  ist,  February  22d,  April  26th,  July  4th,  Thanksgiving 
Day,  Good  Friday,  and  Mardi  Gras  are  holidays.  If  Christmas,  January 
1st,  February  22d,  or  July~4th  falls  on  Sunday,  the  Monday  following  is 
a  holiday.  Paper  falling  due  on  a  holiday  is  payable  on  the  next  succeeding 
business  day. 

ARIZONA.  —  Grace  allowed  except  on  sight  drafts.  Januarj-  ist,  Feb- 
ruary 22d,  May  30th,  July  4th,  December  25th,  Sundays,  thanksgiving,  fast, 
and  election  days  are  holidays.  When  any  other  holiday  falls  on  Sunday, 
the  following  day  is  treated  as  a  legal  holiday.  Notes,  checks,  etc.,  payable 
on  a  holiday,  are  due  and  collectible  on  the  day  following. 

ARKANSAS.  —  Negotiable  instruments  are  governed  by  the  rules  of 
commercial  law.  Sundays,  December  25th,  and  July  4th  are  legal  holidays, 
and  all  paper  falling  due  on  either  of  said  days  and  entitled  to  grace,  is  pay- 
able on  the  preceding  day. 

CALIFORNIA.  —  Days  of  grace  are  not  allowed ;  but  all  contracts  to  be 
performed  on  a  holiday  may  be  performed  on  the  next  day.  Sundays, 
January  ist,  February  22d,  May  30th,  July  4th,  September  9th,  Christmas, 
general  election  days,  and  all  days  appointed  by  the  Governor  or  President 
as  days  of  public  fast,  thanksgiving,  or  holiday,  are  legal  holidays. 
When  any  other  holiday  falls  on  Sunday,  the  Monday  following  is  treated  as 
a  holiday. 

COLORADO. —  Days  of  grace  are  allowed  on  all  bills  and  notes,  except 
drafts  payable  at  sight.  Sundays,  January  ist,  February  22d,  May  30th, 
July  4th,  the  first  Monday  of  September,  December  25th,  and  thanksgiving 
and  fast  days  are  holidays,  and  bills  and  notes  due  on  either  or  any  of  said 
days  are  payable  on  the  preceding  day.  When  any  other  holiday  falls  on 
Sunday,  the  Monday  following  is  treated  as  a  holiday. 

CONNECTICUT.  —  Grace  is  allowed  by  common  law  on  all  negotiable 
instruments,  except  bank  checks,  promissory  notes,  bills  of  exchange,  or 
orders  payable  at  sight  or  on  demand.  When  the  third  day  falls  on  any 
day  appointed  by  the  governor  as  a  day  of  public  thanksgiving  or  fasting,  or 
on  a  Sunday,  January  1st,  February  22d,  May  30th,  July  4th,  or  Christmas 
such  bill  or  note  is  due  on  the  next  preceding  secular  day. 


202   ABSTRACT  OF  DAYS  OF  GRACE  AND  HOLIDAYS. 

DELAWARE.  —  Days  of  grace  are  allowed  on  all  checks,  notes,  drafts, 
or  bills  payable  at  a  time  future,  or  different  from  that  on  which  they  are 
dated,  but  not  on  those  payable  without  time  or  at  sight.  Sundays,  Decem- 
ber 25th,  July  4th,  and  any  day  appointed  for  thanksgiving,  are  public  holi- 
days, and  negotiable  instruments  due  on  the  same  day  are  payable  on  the 
next  preceding  secular  day. 

DISTRICT  OP  COLUMBIA.  —  There  are  no  statute  provisions  as  to 
days  of  grace.  Sundays,  January  ist,  February  22d,  May  30th,  July  4th, 
December  25th,  inauguration  day,  thanksgiving,  and  fast  days  are  public 
holidays,  and  notes  falling  due  thereon  are  deemed  to  have  matured  on  the 
day  previous.  When  any  other  holiday  falls  on  Sunday,  the  following 
day  is  a  holiday. 

FLORIDA.  —  There  has  been  no  special  legislation  on  the  subject  of 
grace;  the  rules  of  commercial  law  prevail.  Sundays,  January  ist,  February 
22d,  July  4th,  December  25th,  general  election  days,  and  days  of  public 
thanksgiving,  fasting,  and  prayer  are  public  holidays,  and  notes  falling  due 
on  such  days  must  be  presented  on  the  secular  day  next  preceding.  When 
any  other  holiday  falls  on  Sunday,  the  following  Monday  is  a  holiday. 

GEORGIA.  —  Grace  is  allowed  except  on  sight  drafts.  Sundays,  January 
1st,  January  19th,  February  22d,  April  26th,  July  4th,  December  25th,  and 
days  of  public  thanksgiving  and  fast  are  holidays.  Notes,  etc.,  falling  due 
on  a  holiday  are  payable  on  the  business  day  next  preceding;  but  when 
holiday  falls  on  Sunday,  Monday  is  observed,  and  paper  due  on  Sunday  is 
pa\able  on  Saturday,  and  that  due  on  Monday  is  payable  on  Tuesday. 
When  holiday  falls  on  Saturday  paper  due  on  Sunday  is  payable  on  Monday, 
and  that  due  on  Monday  is  payable  on  Tuesday. 

IDAHO.  —  Days  of  grace  are  abolished.  Sundays,  January  ist,  February 
22d,  the  last  Monday  in  April,  July  4th,  December  25th,  election,  fast,  and 
thanksgiving  days  are  holidays.  Paper  due  on  a  holiday  is  payable  on  the 
day  following. 

ILLINOIS.  —  Days  of  grace  are  allowed  except  on  instruments  payable 
at  sight,  or  on  demand,  or  on  presentment.  Holidays  are  Sundays,  January 
1st,  February  22d,  May  30th,  July  4th,  December  25th,  any  day  appointed 
by  the  Governor  or  President  as  a  day  of  fast  or  thanksgiving ;  and  paper 
falling  due  on  any  of  said  days  is  payable  on  the  next  preceding  secular  day. 

INDIANA.  —  Grace  is  allowed  on  all  negotiable  instruments.  Sundays, 
January  ist,  July  4th,  Christmas  dav,  and  any  day  appointed  or  recommended 
by  the  Governor  of  the  State  or  President  of  the  United  States  as  a  day  of 
public  fast  or  thanksgiving,  are  holidays,  and  all  negotiable  paper  falling  due 
on  either  of  said  days  is  payable  on  the  day  next  preceding. 

IOWA.  —  Days  of  grace  are  allowed  on  all  bills  and  notes.  Holidays 
are  Sundays,  New  Year's  dav.  May  30th,  July  4th,  Christmas-day.  and  any 
day  appointed  by  the  Governor  or  President  as  a  day  of  fast  or  thanksgiving, 
and  notes  and  bills  due  on  any  of  said  days  are  payable  on  the  preceding 
day. 

KANSAS.  —  Days  of  grace  are  allowed  on  all  bonds,  notes,  and  bills  of 
exchange,  except  bank  checks  and  sight  drafts.      Sundays,  the  fourth   of 


ABSTRACT  OF  DAYS  OF  GRACE  A. YD  H  OLID  A  YS. 


203 


fuly,  Christmas,  New  Years  day,  and  Thanksgiving  and  fast  day  are 
nolidays :  and  the  next  preceding  business  day  is  deemed  the  last  day  of 
grace,  when  the  third  day  falls  on  any  of  such  days. 

KENTUCKY.  —  Grace  is  allowed  on  all  bills  of  exchange  and  promis- 
sory notes  which  are  placed  on  the  same  footing  as  bills  of  exchange.  Sun- 
days, Xew  Year's  day,  May  30th,  the  22d  of  February,  fourth  of  July,  Christ- 
mas day. —  all  days  appointed  by  the  President  or  Governor  as  days  of 
thanksgiving  or  fasting,  are  holidays.  When  any  of  said  days  occur  on  Sun- 
day, the  following  day  is  to  be  observed,  and  bills  and  notes  falling  due  on 
the  same  are  payable  on  the  Saturday  previous. 

LOUISIANA.  —  Days  of  grace  are  allowed,  except  on  bills  of  exchange 
at  sight,  or  drafts,  or  orders  for  money  payable  on  demand.  January  ist, 
January  8th,  Februarj-  22d,  Mardi  Gras,  March  4th  in  New  Orleans,  July  4th, 
Christmas-day,  Sunday,  and  Good  Friday  are  holidays,  and  promissor}-  notes 
and  bills  of  exchange  falling  due  on  the  same  are  payable  on  the  next  follow- 
ing day  not  a  legal  holiday. 

MAINE.  —  Grace  is  allowed  on  all  negotiable  paper,  except  notes  due 
on  demand.  Sundays,  public  fasts  or  thanksgi\'ing,  January  ist,  February 
22d,  May  30th,  July  4th,  and  December  25th,  are  holidays,  and  negotiable 
instruments  falhng  due  on  the  same  are  payable  on  the  preceding  day.  If 
January  ist,  February  22d,  May  3cth,  July  4th,  or  December  25th,  fall  on 
Monday,  and  is  the  third  day  of  grace,  or  on  Saturday  and  the  foUomng 
Sunday  is  the  third  ^2.^%  four  days  are  allowed. 

MARYLAND.  —  There  are  no  special  provisions  on  the  subject  of  days 
of  grace.  The  commercial  law  prevails.  Sundays,  January  ist,  February 
22d,  May  30th,  July  4th,  December  25th,  and  Good  Friday,  and  days  of  pub- 
lic thanksgiving  or  of  humiliation  and  prayer,  are  public  holidays,  and  negoti- 
able paper  falling  due  on  any  of  said  days  is  payable  en  the  secular  day 
next  preceding.  Whenever  any  other  holiday  falls  on  Sunday,  notes  falling 
due  the  following  Monday  are  payable  on  the  Saturday  preceding,  and  notice 
of  dishonor  is  sent  on  Tuesday. 

MASSACHUSETTS.  — Grace  is  allowed  on  all  bills  payable  at  sight,  or 
at  a  future  day  certain,  and  on  promissory  negotiable  notes,  orders,  and 
drafts,  payable  at  a  future  day  certain,  in  which  there  is  not  an  express  stipu- 
lation to  the  contrary ;  but  is  not  allowed  on  any  bill,  note,  or  draft,  payable 
on  demand.  Bills,  drafts,  notes,  due  and  payable  on  Sunday,  Thanksgiving, 
Christmas-day,  the  nineteenth  of  April,  the  thirtieth  of  May,  the  first  Mon- 
day of  September,  the  twenty-second  of  February,  and  Fourth  of  July,  or 
on  the  following  day  when  either  of  these  days  fall  on  Sunday,  shall  be 
payable  on  the  busmess  day  next  following. 

MICHIGAN.  —  Days  of  grace  are  allowed  on  all  bills  of  exchange  paya- 
ble at  sight  or  at  a  future  day  certain ;  on  promissory  notes,  orders,  and 
drafts,  payable  at  a  future  day  certain;  but  not  allowed  on  any  bill,  note,  or 
draft,  payable  on  demand.  Bills  and  notes  maturing  on  Sunday  or  a  legal 
holiday,  are  payable  on  the  day  preceding.  Holidays  are  New  Year's  day, 
February  22d,  May  30th,  July  4th,  Christmas,  and  any  day  appointed  by  the 
Governor  or  President  as  a  day  of  fasting  or  thanksgi\nng.  When  any 
holiday  falls  on  Sunday  the  day  following  is  a  holiday. 


204 


ABSTRACT  OF  DAYS  OF  GRACE  AND  HOLIDAYS. 


MINNESOTA.  —  Grace  is  allowed  on  all  negotiable  instruments  except 
those  payable  on  demand.  Bills,  notes,  and  drafts,  payable  on  Sunday, 
Thanksgiving,  Good  Friday,  Christmas,  New  Year's  day,  February  22d, 
Memorial  Day,  and  July  4th,  or  on  the  following  day  when  either  of  the  last 
four  falls  on  Sunday,  are  payable  on  the  business  day  next  preceding. 

MISSISSIPPI.  —  There  are  no  statute  provisions  on  the  subject  of  days 
of  grace.  The  rules  of  commercial  law  prevail.  Notes,  etc.,  falling  due  on 
Sunday,  New  Year's  day,  the  Fourth  of  July,  or  Christmas-day,  are  payable 
on  the  secular  day  next  preceding. 

MISSOURI.  —  Grace  is  allowed  except  on  sight  drafts.  Sundays,  New 
Year's  day,  the  twenty-second  of  February,  Fourth  of  July,  Christmas-day, 
state  and  national  thanksgiving  days,  and  the  day  of  the  general  state 
election,  are  public  holidays,  and  negotiable  instruments  due  thereon  are 
payable  on  the  succeeding  day,  unless  such  succeeding  day  be  a  holiday,  and 
then  on  the  day  previous.  Holiday  falling  on  Sunday  is  observed  on 
Monday. 

MONTANA.  —  Grace  allowed  except  on  sight  drafts.  Bills  and  notes 
falling  due  on  Sunday,  July  4th,  December  25th,  Fast  or  Thanksgiving  days, 
are  payable  on  the  day  previous. 

NEBRASKA.  —  Days  of  grace  are  allowed  on  all  negotiable  paper. 
Holidays  falling  on  Sunday  are  to  be  observed  on  Monday,  and  negotiable 
instruments  falling  due  on  Monday,  when  a  holiday,  are  payable  on  the  next 
day.  Holidays  are  January  ist,  February  22d,  April  22d,  May  30th,  July 
4th,  December  25th,  the  first  Monday  in  September,  Thanksgiving  and  Fast 
days. 

NEVADA.  —  Days  of  grace  are  allowed  on  all  negotiable  paper  except 
bills  of  exchange  and'  drafts  payable  at  sight.  Paper  falling  due  on  a  holiday 
is  payable  on  the  day  preceding.  Holidays  are  Sundays,  January  ist, 
February  22d,  July  4th,  Thanksgiving  and  Christmas  days. 

NE"W  HAMPSHIRE.  — Grace  is  allowed  on  all  bills,  drafts,  orders,  and 
negotiable  promissory  notes,  unless  the  same  are  01  demajid,  or  grace  is 
expressly  excluded  in  the  instrument.  Negotiable  paper  due  on  the  follow- 
ing holidays :  Sunday,  Thanksgiving,  Fast,  the  -general  state  election,  the 
twenty-second  of  February,  Fourth  of  July,  May  30th,  Christmas,  or  on  the 
following  day,  when  either  of  the  last  four  days  fall  on  Sunday,  is  due  and 
payable  on  the  business  day  next  preceding. 

NE"W  JERSEY.  —  Grace  is  allowed  on  all  checks,  bills  of  exchange,  or 
drafts,  except  those  drawn  on  banks  or  banking  associations,  whether  the 
same  are  at  sight,  or  payable  on  any  specified  day,  or  within  any  specified 
day.  Bills  of  exchange  or  promissory  notes  falling  due  on  Saturday, 
Sundav,  Christmas,  New  Year's  day,  February  22d,  May  30th,  July  4th,  the 
first  Monday  of  September,  general  election  days,  and  any  day  of  public 
thanksgiving  or  fasting,  are  payable  on  the  next  succeeding  secular  clay,  un- 
less such  holiday  falls  on  Sunday,  when  they  are  payable  on  the  Tuesday 
following.     Holidays  falling  on  Sunday  are  observed  on  Monday. 

NEW  MEXICO.  —  No  grace  is  allowed.  Notes,  etc.,  falling  due  on 
Sunday,  or  a  holiday,  are  payable  on  the  next  succeeding  business  day. 
January  1st,  July  4th,  December  25th,  Thanksgiving,  and  Fast  days  are  legal 
hoHdays. 


ABSTRACT  OF  DA  YS  OF  GRACE  AND  HOLIDAYS.    205 

NEW  YORK.  —  Grace  is  allowed  except  on  sight  drafts  and  checks,  bills, 
or  drafts  drawn  on  a  bank  or  banker,  and  payable  on  a  day  certain.  Sun- 
days, January  ist,  February  22d,  May  30th,  July  4th,  the  first  Monday  in 
September,  December  25th,  Saturday  afternoons,  any  general  election  day, 
and  any  day  appointed  by  the  Governor  or  President  as  a  day  of  thanksgiv- 
ing or  fasting,  are  hohdays.  Bills  and  notes,  except  those  payable  at  sight 
or  on  demand,  falling  due  on  a  holiday  or  Saturday,  are  payable  on  the  next 
secular  or  business  day ;  but  those  falling  due  on  Saturday  may  be  presented 
on  that  day  at  or  before  12  o'clock.  Other  holidays  falling  on  Sunday  are 
observed  on  Monday. 

NORTH  CAROLINA.  —  Grace  is  allowed  except  on  notes  and  drafts 
payable  on  demand.  January  ist,  February  22d,  May  iqth.  May  20th,  July 
4th,  December  25th,  and  Thanksgiving  day  are  public  holidays,  and  notes, 
etc.,  falling  due  thereon  are  payable  on  the  day  previous.  Holidays  falling  on 
Sunday  are  observed  on  Monday,  and  notes,  etc.,  due  on  such  Sunday  are 
payable  on  the  Saturday  preceding,  and  those  otherwise  payable  on  Monday 
on  the  Tuesday  following.  When  a  holiday  falls  on  Saturday,  notes,  etc.. 
due  on  the  Sunday  following,  are  payable  on  Monday.  When  it  falls  or 
Monday,  those  otherwise  payable  on  that  day  are  payable  on  Tuesday. 

NORTH  DAKOTA.  — Grace  is  allowed  on  all  bills  of  exchange  and 
promissory  notes,  but  Sundays  and  holidays  are  excluded  from  the  computa- 
tion. January  ist,  February  22d,  July  4th,  December  25th,  May  30th, 
general  election  and  thanksgiving  days,  and  Sundays  are  holidays.  If  any 
of  the  first  four  falls  on  Sunday,  the  following  Monday  is  a  holiday. 

OHIO.  —  Grace  is  allowed  except  on  checks,  bills,  and  drafts,  drawn  on  a 
banker  or  broker,  and  payable  on  a  specific  day  or  a  certain  number  of  days 
after  date  or  sight.  January  ist,  February  22d,  May  30th,  July  4th,  Decem- 
ber 25th,  Fast  and  Thanksgiving  days,  are  legal  holidays.  Notes,  etc.,  fall- 
ing due  thereon  are  payable  on  the  preceding  secular  day.  Holidays  falling 
on  Sunday  are  observed  on  Monday. 

OKLAHOMA  TERRITORY.  — Grace  is  allowed  on  all  negotiable 
instruments  except  on  checks,  unless  expressly  excepted,  but  Sundays  and 
holidays  are  excluded. 

OREGON.  —  Grace  is  allowed  on  all  negotiable  notes,  etc.,  except  bills, 
notes,  and  drafts,  payable  on  demand.  Sundays,  January  ist,  February  22d, 
May  30th,  the  first  Saturday  of  June,  July  4th,  December  25th,  days  of  gen- 
eral election.  Fast  and  Thanksgiving  are  holidays.  Notes,  etc.,  payable  on 
a  hohday  are  due  on  the  next  business  day. 

PENNSYLVANIA.  — Grace  is  allowed  except  on  drafts  and  bills  of 
exchange  payable  at  sight.  Sundays,  January  ist,  February  22d,  May  30th, 
July  4th,  first  Monday  in  September,  December  25th,  Good  Friday,  and  any 
day  fixed  by  law  or  by  the  Governor  as  a  day  of  fasting  or  thanksgiving  or 
general  cessation  from  business,  are  public  holidays,  and  negotiable  paper 
due  on  any  of  said  days  is  payable  on  the  next  preceding  secular  day. 
Saturday  afternoons  from  June  15th  to  September  15th,  inclusive,  are  also 
holidays.     When  a  holiday  falls  on  Sunday,  it  is  observed  on  the  Monday 


2o6    ABSTRACT  OF  DAYS  OF  GRACE  AND  HOLIDAYS. 

following,  and  bills  payable  on  the  holiday  are  due  the  previous  Saturday, 
except  Decoration  Day,  which  is  observed  on  Saturday. 

RHODE  ISLAND.  —  Grace  is  allowed  on  notes  and  bills  of  exchange. 
July  4th,  Christmas  day,  February  22d,  and  May  30th,  or,  when  either  of 
said  days  fall  on  Sunday,  the  day  following  it,  Sundays,  days  of  thanksgiving 
or  fast  are  holidays,  and  payment  of  all  notes,  checks,  and  bills,  due  and 
payable  on  such  holidays,  is  to  be  made  on  the  secular  day  next  preceding. 

SOUTH  CAROLINA.  —  Days  of  grace  are  allowed  on  all  bills  and  notes, 
whether  at  sight  or  otherwise.  Days  of  national  thanksgiving,  general 
election,  January  ist,  February  22d,  July  4th,  and  December  25th,  are 
holidays. 

SOUTH  DAKOTA.  — Grace  is  allowed  on  all  bills  of  exchange  and 
promissory  notes,  but  Sundays  and  holidays  are  excluded  in  the  computa- 
tion. January  ist,  February  22d,  July  4th,  December  25th,  May  30th,  and 
days  of  general  election,  and  thanksgiving  days  are  holidays.  If  any  of  the 
first  four  falls  on  Sunday,  the  Monday  following  is  a  holiday. 

TENNESSEE.  —  Grace  is  not  allowed  on  bills  of  exchange  payable  at 
sight.  Sundays,  New  Year's  day,  Fourth  of  July,  Christmas,  and  any  day 
appointed  by  the  President  or  Governor  as  a  day  of  fast  or  thanksgiving, 
are  holidays,  and  negotiable  paper  due  on  such  days  is  payable  on  the 
preceding  secular  day. 

TEXAS.  —  Grace  is  allowed  on  all  negotiable  notes  and  bills.  January 
1st,  February  22d,  March  2d,  April  21st,  July  4th,  December  25th,  general 
election  days,  and  days  of  public  fasting  or  thanksgiving  are  holidays.  If  a 
hohday  occurs  on  Sunday  the  next  day  is  observed  as  a  holiday,  but  present- 
ment of  commercial  paper  for  acceptance  or  payment  in  such  case  may  be 
made  on  the  Saturday  previous. 

UTAH.  —  Grace  is  not  allowed.  January  ist,  February  22d,  May  30th, 
July  4th,  July  24th,  December  25th,  Fast  and  Thanksgiving  days  are 
holidays.  Hohdays  faUing  on  Sunday  are  observed  on  Monday.  Notes, 
etc.,  falling  due  on  Sunday  must  be  presented  on  the  day  preceding,  except 
when  Sunday  and  a  legal  holiday  come  together,  and  then  on  the  day 
following. 

VERMONT.  —  Grace  is  allowed  except  on  bills,  drafts,  and  promissory 
notes,  payable  on  demand  or  at  sight.  Negotiable  paper  not  subject  to 
grace  falling  due  on  Sunday  or  a  legal  holiday  is  considered  due  on  the  fol- 
lowing business  day,  but  if  subject  to  grace  on  the  next  preceding  business 
day.  Sundays,  January  ist,  July  4th,  May  30th,  December  25th,  Fast  and 
Thanksgiving  days  are  legal  holidays. 

VIRGINIA.  —  Grace  is  allowed  except  on  sight  drafts.  January  ist, 
February  22d,  July  4th,  December  25th,  and  days  of  pubhc  thanksgiving  or 
fast  are  holidays,  and  notes,  etc.,  falling  due  thereon,  are  payable  on  the 
secular  day  next  preceding.  When  any  holiday  falls  on  Sunday,  the  Mon- 
day following  is  observed  as  a  hohday,  and  notes,  etc.,  due  on  either  day  are 
payable  on  Saturday. 


ABSTRACT  OF  DA  YS  OF  GRACE  AND  HO  LI  DA  VS.    207 

"WASHINGTON.  —  Grace  allowed  on  all  negotiable  notes,  etc.  January 
1st,  Sundays,  February  22d,  May  30th,  July  4th,  December  25111,  days  of 
general  elections  and  thanksgiving  are  holidays.  When  the  last  day  of 
grace  falls  on  a  holiday,  notes,  etc.,  are  payable  on  the  preceding  day. 

WEST  VIRGINIA.  —  Grace  allowed  except  on  sight  drafts.  Negotia- 
ble paper  due  on  Sunday,  Christmas,  January  ist,  February  22d,  July  4th,  or 
days  of  national  thanksgiving  are  due  on  the  preceding  secular  day.  Holi- 
days falling  on  Sunday  are  observed  on  Monday. 

WISCONSIN.  —  Days  of  grace  are  abolished  from  and  after  April 
5,  1894.  Negotiable  paper  falling  due  on  Sunday,  January  ist,  February 
22d,  May  30th,  July  4th,  December  25th,  Thanksgiving  day,  general  election 
days,  is  payable  on  the  secular  day  next  preceding.  Holidays  falling  on 
vSunday  are  observed  on  Monday,  and  papers  maturing  on  either  day  are 
pa\able  on  the  preceding  secular  day. 

WYOMING — The  rules  of  commercial  law  prevail.  January  ist,  Feb- 
uary  22d,  May  30th,  July  4th,  December  25th,  and  the  annual  Thanksgiving 
day,  are  holidays. 


CHAPTER  XVII. 

AGENCY. 


SECTION  I. 

AGENCY    IN    GENERAL. 

The  relation  of  principal  and  agent  implies  that  the  princi- 
pal acts  by  and  through  the  agent,  so  that  the  acts  in  fact  of 
the  agent  are  the  acts  in  law  of  the  principal ;  and  only  when 
one  is  authorized  by  another  to  act  for  him  in  this  way,  and  to 
this  extent,  is  he  an  agent.  One  who  is  disqualified  from  con- 
tracting on  his  own  account  may  act  as  the  agent  of  another  ; 
thus  infants,  married  women,  and  aliens  may  act  as  agents  for 
others. 

A  principal  is  responsible  for  the  acts  of  his  agent,  not  only 
when  he  has  actually  given  full  authority  to  the  agent  thus  to 


208  AGEA'CV. 

represent  and  act  for  him,  but  when  he  has,  by  his  words,  or 
his  acts,  or  both,  caused  or  permitted  the  person  with  ^\■hom  the 
the  agent  deals  to  beheve  him  to  be  clothed  with  this  authority 
And  a  man  may  be  thus  held  as  a  principal,  either  because  he 
has  in  some  way  authorized  a//  persons  to  believe  that  he  has 
constituted  some  other  man  his  agent,  or  because  he  has  author- 
ized only  the  party  dealing  with  the  supposed  agent  to  so  believe. 
For  all  responsibility  rests  upon  two  grounds,  which  are  com- 
monly united,  but  either  of  which  alone  is  sufficient  ;  one,  the 
giving  of  actual  authority  ;  the  other,  such  appearing  to  give 
authority  as  justifies  those  who  deal  with  the  supposed  agent  ui 
believing  that  this  authority  was  given  him. 

A  general  agent  is  one  authorized  to  represent  his  principal 
in  all  his  business,  or  in  all  his  business  of  a  particular  kind 
A  particular  agent  is  one  authorized  to  do  only  a  specific  thing 
or  a  few  specified  things.  It  is  not  always  easy  to  discriminate 
between  these;  but  it  is  often  important,  by  reason  of  the  rule 
that  the  authority  of  the  general  agent  is  measured  by  the 
usual  scope  and  character  of  the  business  he  is  empowered  to 
transact.  By  appointing  him  to  do  that  business,  the  principal 
is  considered  as  saying  to  the  world  that  his  agent  has  all  the 
authority  necessary  to  the  doing  of  it  in  the  usual  way.  And 
if  the  agent  transcends  his  actual  authority,  but  does  not  go 
beyond  the  natural  and  usual  scope  of  the  business,  the  princi- 
pal is  bound,  unless  the  party  with  whom  the  general  agent 
dealt  knew  that  the  agent  exceeded  his  authority  For  if  an 
agent  does  only  what  is  natural  and  usual  in  transacting  busi- 
ness for  his  principal,  and  yet  goes  beyond  the  limits  prescribed 
by  him,  it  is  obvious  that  the  principal  must  have  put  particular 
and  unusual  limitations  to  his  authority ;  and  these  cannot 
affect  the  rights  of  a  third  party  who  deals  with  the  agent  in 
ignorance  of  these  limitations.  But,  on  the  other  hand,  the 
rule  is,  that,  if  an  agent  who  is  specially  authorized  to  do  a  spe- 
cific thing  exceeds  his  authority,  the  principal  is  not  bound, 
because  the  party  dealing  with  such  agent  must  inquire  for  him- 
self, and  at  his  own  peril,  into  the  extent  and  limits  of  the 
authority  given  to  the  agent.  Here,  however,  as  before,  if  the 
party  dealing  with  the  agent,  and  inquiring,  as  he  should,  into 


HOW  AUTHOR/TV  MA  V  BE  GU'EX  TO  AN  AGENT. 


2og 


his  authority,  has  sufficient  evidence  of  this  authority  furnislied 
to  him  by  the  principal,  and,  in  his  deaHngs  with  the  agent,  acts 
within  the  limits  of  the  authority  thus  proved,  he  cannot  be 
affected  by  any  reservations  and  limitations  made  secretly  by 
the  principal,  and  wholly  unknown  to  the  person  dealing  with 
the  agent. 

SECTION  II. 

HOW    AUTHORITY   MAY   RE    GIVEN   TO    AN    AGENT. 

It  may  be  given  under  seal,  or  in  writing  without  seal,  or 
orally.  If  given  by  a  written  instrument,  this  instrument  is 
called  a  Power  of  Attorney,  of  which  we  shall  give  various 
forms  at  the  close  of  this  chapter.  An  oral  appointment  author- 
izes the  agent  to  make  a  written  contract,  but  not  to  execute 
instruments  under  seal.  But  an  instrument  under  seal,  signed 
and  sealed  in  the  principal's  presence,  and  by  his  request  and 
authority,  will  be  regarded  as  the  principal's  deed,  made  by  him- 
self. One  employed  by  another  to  act  for  him  in  the  usual 
trade  or  business  of  the  agent,  as  auctioneer,  broker,  or  the  like, 
acquires  thereby  authority  to  do  all  that  is  necessary  or  usual 
in  that  business.  And  if  a  person  puts  his  goods  into  the  cuS' 
tody  of  another  whose  ordinary  and  usual  business  it  is  to  sell 
such  goods,  he  authorizes  the  whole  world  to  believe  that  this 
person  has  them  for  sale,  and  any  person  buying  them  honestly, 
in  this  belief,  would  hold  them. 

Therefore,  if  fraudulent  by-bidding  be  procured  or  permitte  I 
by  the  auctioneer,  even  without  the  knowledge  of  the  owner  df 
the  goods,  the  owner  is  answerable  for  this  fraud  of  his  agent, 
and  the  buyer  has  a  right  to  refuse  to  take  the  goods.  So 
neither  party  is  bound  until  the  agreement  of  sale  is  completed. 
Therefore  the  auctioneer  may  withdraw  any  article,  and  a  bidder 
may  withdraw  any  bid,  until  the  article  is  "knocked  down," 
but  not  afterwards  ;  for  then  the  sale  is  completed,  and  tie 
property  in  (or  ownership  of)  the  article  passes  to  the  buyer. 

If  one  is   repeatedly  employed  to  do  certain  things, — as  a 

wife  or  a  son  to  sign  bills  or  receipts  ;  or  domestic   servant  to 

make  purchases  ;  or  a  merchant  or  broker  to  sign  policies,  and 

the  like, — in  all  these  cases,  one  dealing  with  the  person  thus 

14 


2IO  AGEA'CV. 

usually  employed,  is  justified  in  believing  him  authorized  to  do 
those  things  with  the  assent  and  approbation  of  his  employer, 
and  in  the  same  way  in  which  he  has  done  them,  but  not  in  any 
other  way.  Thus,  if  a  servant  is  usually  employed  to  buy,  but 
always  for  cash,  this  implies  no  authority  to  buy  on  credit. 

An  agency  may  be  confirmed  and  established,  and  in  fact 
created,  by  a  subsequent  adoption  and  ratification  ;  and  a  rati- 
fication relates  back  to  the  original  transaction  ;  and  a  corpora' 
tion  is  bound  by  the  ratification  of  an  agent's  acts,  in  the  same 
manner  as  an  individual  would  be.  But  no  ratification  is  effec- 
tual to  bind  the  principal,  unless  made  by  the  principal  with  a 
knowledge  of  all  the  material  facts.  And  there  can  be  ratifica- 
tion only  where  the  act  is  done  by  one  purporting  to  be  an  agent, 
or  by  an  assumed  authority.  Generally,  one  wdio  receives  and 
holds  a  beneficial  result  of  the  act  of  another  as  his  agent,  is 
itiot  permitted  to  deny  such  agency  ;  and  in  some  cases  this  is 
extended  even  to  acts  of  such  agent  under  seal. 

Thus,  if  an  agent  sell  under  seal  property  of  a  supposed 
principal,  an  individual  or  a  corporation,  and  receive  payment, 
and  hand  this  over  to  the  principal,  if  the  principal  could  show 
l;hat  the  agent  had  no  authority,  he  might  avoid  the  -sale,  and 
recover  the  property  ;  but  he  could  not  do  this  and  also  ho/d  the 
money  paid  for  it.  And  if  one,  knowing  that  another  has  acted 
as  his  agent,  does  not  disavow  the  authority  as  soon  as  he  con- 
veniently can,  but  lies  by  and  permits  a  person  to  go  on  and  deal 
with  the  supposed  agent,  or  to  lose  an  opportunity  of  indemni- 
fying himself,  this  is  an  adoption  and  confirmation  of  the  acts  of 
the  agent.  Nor  can  a  supposed  principal  adopt  a  part  for  his 
own  benefit,  and  repudiate  the  rest  of  the  supposed  agency  ;  he 
must  adopt  the  whole  or  none. 

If  an  agent  makes  a  sale,  and  his  principal  ratifies  the  sale, 
he  thereby  ratifies  the  agent's  representations  made  at  the  time 
of  the  sale  and  in  relation  to  it,  and  is  bound  by  them. 

The  whole  subject  of  mercantile  agency  is  influenced  and 
governed  by  mercantile  usage.  Thus,  as  to  the  difference 
between  factors  and  brokers,  the  law  adopts  a  distinction  usual 
among  merchants,  although  it  may  not  always  be  regarded  by 
them.     A  factor  is  a  mercantile  agent  for  sales  and  purchases, 


HOIV  A  UTHORIT\ '  M.  1  i '  BL'  (J /I  'LW  TO  AN  AGENT.     2 1  I 

who  has  possession  of  the  goods  ;  a  broker  is  such  agent,  but 
without  possession  of  the  goods.  Hence,  a  factor  may  act  for 
his  principal,  and  yet  in  his  own  name,  because  the  actual 
owner,  by  delivering  to  him  the  goods,  gives  to  him  the  appear- 
ance of  an  owner ;  but  a  broker  must  act  only  in  the  name  of 
his  principal. 

A  purchaser  of  goods  from  a  factor  may  set  off  against  the 
price  a  debt  due  from  the  factor,  unless  he  buys  the  goods  know- 
ing that  they  are  another's  ;  not  so,  if  the  purchaser  buy  from  a 
broker.  Again,  a  factor  has  a  lien  on  the  goods  for  his  claims 
against  his  principal ;  but  a  broker  generally  has  not. 

One  may  be  a  factor  as  to  all  rights  and  duties,  who  is  called 
a  broker ;  as  an  exchange-broker,  who  has  notes  for  sale  on  dis- 
count, certificates  of  stock,  etc.,  delivered  into  his  possession  ; 
and  such  broker,  being  actually  a  factor,  would  have  a  lien  on 
the  policies  of  insurance  or  other  documents  held  by  him,  for 
his  commissions  and  charges  about  those  documents. 

A  cashier  of  a  bank,  or  other  official  person,  may  be  an  agent 
for  those  whose  officer  he  is,  or  for  others  who  employ  him.  He 
has,  without  special  gift,  all  the  authority  necessary  or  usual  to 
the  transaction  of  his  business.  But  he  cannot  bind  his  employ- 
ers by  any  unusual  or  illegal  contract  made  with  their  customers. 
The  same  law,  and  the  same  qualifications,  apply  to  the  case  of 
officers  of  railroad  companies,  or  other  corporations.  Their  acts 
bind  their  employers  or  companies,  so  far  as  they  have  authorized 
those  acts,  or  have  justified  those  who  dealt  with  the  officers  in 
believing  that  the  officers  possessed  suCh  authority  but  no 
further. 

Nor  would  the  acts  or  permissions  of  such  officer  have  any 
validity  if  they  violate  his  official  duties,  c^nd  are  certainly  and 
obviously  beyond  his  power,  even  if  sanctioned  by  his  directors  ; 
as  if  the  cashier  of  a  bank  permitted  overdrawing,  or  the  like. 
And  all  parties  who  deal  with  such  agent  in  such  a  transactictl 
would  be  unable  to  hold  the  principal ;  for  the  law  would  con- 
sider them  as  knowing  that  the  officer  could  have  no  right  to 
do  such  things. 

Therefore,  the  general  agent  of  a  corporation,  clothed  with  a 
certain  power  by  the  charter  or  the  lawful  acts  of  the  corpora- 


212  AGEjVCV. 

tion,  may  use  that  power  for  an  authorized,  or  even  a  prohibited 
purpose,  in  his  dealings  with  an  innocent  third  party,  and  render 
the  corporation  liable  for  his  acts,  if  they  be  really  within  the 
power  given  him,  or  seem  to  be  within  it  by  the  fault  or  act  of 
the  corporation  ;  but  not  otherwise.  Thus,  a  treasurer  of  a  cor- 
poration has  no  power  to  release  a  claim  which  belongs  to  the 
corporation. 

SECTION  III. 

EXTENT   AND    DURATION    OF    AUTHORITY. 

A  GENERAL  authority  may  continue  to  bind  a  principal  after 
its  actual  revocation,  if  the  agency  were  known,  and  the  revoca- 
tion be  wholly  unknown  to  the  party  dealing  with  the  agent, 
without  that  party's  fault. 

An  authority  to  sell  implies  an  authority  to  sell  on  credit,  il 
that  be  usual ;  otherwise  not ;  and  if  an  agent  sells  on  credit 
without  any  authority,  or  by  exceeding  his  authority,  the  princi- 
pal may  claim  his  goods  from  the  purchaser,  or  hold  the  agent 
responsible  for  their  price.  Neither  an  auctioneer,  nor  a  broker 
employed  to  sell,  has  any  right  to  sell  on  credit,  unless  this 
authority  is  given  him  expressly,  or  by  some  known  and  estab 
lished  usage.  And  the  agent  is  generally  responsible  if  he 
mixes  the  goods  of  his  principal  with  his  own,  in  such  a  manner 
as  to  confuse  them  together,  or  takes  a  note  payable  to  himself, 
unless  this  be  authorized  by  the  usage  of  the  trade. 

If  the  agent  (or  factor)  takes  a  note  payable  to  himself,  and 
becomes  bankrupt,  such  note  belongs  to  his  principal,  and  no.  t 
to  the  agent's  assignees. 

A  power  to  sell  gives  a  power  to  warrant,  where  there  is  a 
distinct  usage  of  making  such  sales  with  warranty,  and  the  want 
of  authority  to  warrant  is  unknown  to  the  purchaser,  without  his 
fault ;  and  not  otherwise.  Thus,  it  has  been  held  that  an  author- 
ity to  sell  a  horse  implies  an  authority  to  sell  with  warranty, 
because  horses  are  usually  sold  with  warranty.  A  general 
authority  to  sell  goods  carries  with  it  an  authority  to  sell  by 
sample.  General  authority  to  transact  business,  or  even  to 
receive  and  discharge  debts,  does  not  enable  an  agent  to  accept 
or  indorse  bills  or  notes,  so  as  to  charge  his  principal.     Indeed, 


EXTENT  AND  D URA  TION  OF  A  UTHORITY.  2 1 3 

special  authorities  to  indorse  are  construed  strictly.  But  this 
authority  may  be  implied  from  the  previous  usage  of  the  agent, 
recognized  and  sanctioned  by  the  i^rincipal.  Where  a  confi- 
dential clerk  was  accustomed  to  draw  bills  for  his  employer,  and 
this  employer  had  authorized  him  in  one  instance  to  indorse, 
and  on  two  other  occasions  had  received  money  obtained  by  his 
indorsement  of  his  employer's  name,  the  court  held  that  a  jury 
might  consider  the  clerk  alithorized  generally  to  indorse  for  his 
employer.  An  agent  to  receive  cash  has  no  authority  to  take 
bills  or  notes,  except  bank-notes. 

If  an  agent  sells  and  makes  a  material  representation  which 
he  believes  to  be  true,  and  the  principal  knows  it  to  be  false, 
3nd  does  not  correct  it,  this  is  the  fraud  of  the  principal,  and 
avoids  the  sale. 

If  an  agency  be  justly  implied  from  general  employment,  it 
may  continue  so  far  as  to  bind  the  principal  after  his  withdrawal 
of  the  authority,  if  that  withdrawal  be  not  made  known,  in  such 
way  as  is  usual  or  proper,  to  all  who  deal  with  the  agent  as 
such. 

Revocation,  generally,  is  always  in  the  power  and  at  the  will 
of  the  principal.  His  death  operates  of  itself  a  revocation.  But 
the  death  of  an  agent  does  not  revoke  the  authority  of  a  sub- 
agent  appointed  by  the  agent  under  an  authority  given  him  by 
the  principal.  If  the  power  be  coupled  with  an  interest, — as 
where  one  gives  a  person  power  to  sell  goods  and  apply  the 
money  for  his  own  benefit,  or  the  like, — or  if  it  is  given  for 
a  valuable  consideration,  and  the  continuance  of  the  power  is 
requisite  to  make  the  interest  available,  then  it  cannot  be  revoked 
at  the  pleasure  of  the  principal.  Marriage  of  a  woman  revokes 
a  revokable  authority  given  by  her  while  single. 

If  an  agent  to  whom  commercial  paper  is  given  for  collection 
be  negligent  or  mistaken  about  it,  and  so  in  fault  towards  his 
principal,  the  measure  of  his  responsibility  is  the  damage  actually 
sustained  by  his  principal. 

If  a  bank  receive  notes  or  bills  for  collection,  although  charg- 
ing no  commission,  the  possible  use  of  the  money  is  consideration 
enough  to  make  them  liable  as  agents  having  compensation  ; 
that  is,  liable  for  any  want  of  due  and  legal  diligence  and  care. 


214 


AGENCV. 


But  if  the  bank  exercise  proper  skill  and  care  in  the  choice  of 
a  collecting  agent,  or  of  a  notary,  or  other  person  or  officer, 
to  do  what  may  be  necessary  in  relation  to  the  paper  committed 
to  them,  the  bank  is  not  liable  for  his  want  of  care  or  skill. 

In  general,  an  exigency,  or  even  necessity,  which  would 
make  an  extension  of  the  power  of  an  agent  very  useful  to  his 
employer,  will  not  give  that  extension.  A  master  of  a  ship, 
however,  may  sell  it,  in  case  of  necessity,  or  pledge  it  by  bot- 
tomry, to  raise  money.  But  this  is  a  peculiar  effect  of  the  law- 
merchant,  to  be  considered  more  fully  in  the  chapter  on  the 
Law  of  Shipping  ;  and  no  such  general  rule  applies  to  ordinary 
agencies. 

SECTION  IV. 

THE   EXECUTION    OF    AUTHORITY. 

Generally,  an  authority  must  be  conformed  to  with  great 
strictness  and  accuracy  ;  otherwise,  the  principal  will  not  be 
bound,  although  the  agent  may  be  bound  personally.  But  the 
old  strictness  is  now  abated  considerably;  and,  whatever  be  the 
form  or  manner  of  the  signature  of  a  simple  contract,  it  will  be 
held  to  bind  the  principal,  if  that  were  the  certain  and  obvious 
intent.  In  the  case  of  sealed  instruments,  the  ancient  severity 
is  more  strictly  maintained. 

That  the  authority  must  be  conformed  to  with  strict  accuracy, 
in  all  matters  of  substance,  is  quite  certain ;  but  the  wholfc 
instrument  will  be  considered,  in  order  to  ascertain  the  inter  • 
tion  of  the  parties  and  the  extent  of  authority.  A  power  given 
to  two  cannot  be  executed  by  one;  but  some  exception  to  the 
rule  as  to  joint  power  exists  in  the  case  of  public  agencies,  and  also 
in  many  commercial  transactions.  Thus,  either  of  two  factors — 
whether  partners  or  not — may  sell  goods  consigned  to  both. 
And  where  there  are  joint  agents,  whether  partners  or  not, 
notice  to  one  is  notice  to  both. 

In  commercial  matters,  usage,  or  the  reason  of  the  thing, 
may  sometimes  seem  to  add  to  an  authority ;  so  far,  at  least,  as 
is  requisite  for  the  full  discharge  of  the  duty  committed  to  the 
agent  in  the  best  and  most  complete  manner.  Thus,  it  is  held 
that  an  agent  to  get  a  bill  discounted  may  indorse  it  in  the  name 


RIGHTS  OF  ACTION  GROWING  OUT  OF  AGENCY.     215 

of  his  principal,  unless  he  is  expressly  forbidden  to  nidorse.  S  j 
a  broker,  employed  to  procure  insurance,  may  adjust  a  loss  undc 
the  same  ;  but  he  cannot  give  up  any  advantages,  rights,  or 
securities  of  the  assured,  by  compromise  or  otherwise,  without 
special  authority. 

SECTION  V. 

LIABILITY    OF    AX    AGENT. 

Generally,  an  agent  makes  himself  liable  by  his  express 
agreement,  or  by  transcending  his  authority,  or  by  a  material 
departure  from  it,  or  by  concealing  his  character  as  agent,  or  by 
such  conduct  as  renders  his  principal  irresponsible,  or  by  his 
own  bad  faith.  If  he  describes  himself  as  agent  for  some 
unnamed  principal,  he  is  not  liable,  unless  he  is  proved  to  be 
the  real  principal.  If  an  agent  execute  an  instrument  the  lan- 
guage of  which  would  hold  him  personally,  he  cannot  exonerate 
himself  by  showing  that  in  fact  he  signed  it  as  agent,  and  that: 
this  was  known  to  the  other  party.  Because  this  would  be  tc 
vary  the  terms  of  a  written  contract  by  evidence,  which  is  not. 
permitted,  as  we  have  before  stated. 

A  party  with  whom  an  agent  deals  as  agent  cannot  hold  him 
personally,  on  the  ground  that  he  transcended  or  departed  from 
his  authority,  if  that  party  knew  at  the  time  that  the  agent  did 
so.  If  he  exceeds  his  authority,  he  is  liable  on  the  whole  con 
tract,  although  a  part  of  it  is  within  his  authority.  One  who. 
liaving  no  authority,  acts  as  agent,  is  personally  responsible. 
But  if  an  agent  transcends  his  authority  through  an  ignorance 
of  its  limits,  which  is  actual  and  honest,  and  is  not  imputable  to 
his  own  neglect  of  the  means  of  knowledge,  he  would  not  be 
held,  unless  an  innocent  party  dealing  with  him  as  agent  would 
otherwise  suffer  loss. 

SECTION  VI. 

RIGHTS    OF   ACTIOX   GROWIXG   OUT    OF    AGENCY. 

If  an  agent  intrusted  with  goods  sell  the  same  without 
authority,  the  principal  may  affirm  the  sale,  and  sue  the  buyer 
for  the  price,  or  he  may  disaffirm  the  sale,  and  recover  the  goods 
from  the  buyer. 


2l6  ACENCK 

In  case  of  a  simple  contract,  that  is,  a  contract  not  under 
seal,  an  undisclosed  principal  may  show  that  the  nominal  party 
was  actually  his  agent,  and  thus  make  himself  actually  a  party 
to  the  contract,  and  sue  upon  it ;  but  if  the  other  party  has  pre- 
viously  in  good  faith  settled  with  the  supposed  agent,  or  paid 
him  anything,  in  cash  or  by  charge,  or  in  account,  this  othet 
party  must  not  lose  by  the  coming  forward  of  the  principal.  So, 
too,  an  undisclosed  principal,  when  discovered,  may  be  made 
liable  on  such  contract;  but  would  be  protected,  if  his  accounts 
or  relations  with  his  agent  had  been  in  the  meantime  changed  in 
good  faith,  so  as  to  make  it  detrimental  to  him  to  be  held  liable. 
If  one  sells  to  an  agent,  knowing  him  to  be  an  agent,  and  know- 
ing who  is  his  principal,  and  elects  to  charge  the  goods  to  the 
vgent  alone,  he  cannot  afterwards  transfer  the  charge  to  the 
principal. 

Notice  to  an  agent,  before  the  transaction  goes  so  far  as  to 
render  the  notice  useless,  is  notice  to  the  principal.  And  knowl- 
edge obtained  by  an  agent  in  the  course  of  the  transaction  itself 
is  the  same  thing  as  knowledge  of  the  principal.  Notice  to  an 
officer  or  member  of  a  corporation  is  notice  to  that  corporation, 
if  the  officer  or  member,  by  appointment,  or  by  usage,  had 
authority  to  receive  it  for  the  corporation ;  but  notice  to  any 
member  is  not  necessarily  notice  to  a  corporation. 

SECTION  VII. 

HOW    A    PRINCIPAL   IS    AFFECTED    P.Y   THE   ACTS    OF    HIS    AGENT. 

If  an  agent  makes  a  fraudulent  representation,  a  principal 
would  be  liablefor  resulting  injury,  although  personally  ignorant 
and  innocent  of  the  wrong;  nor  can  he  take  any  benefit  there- 
from. A  principal  cannot,  of  course,  restrict  his  liability  by 
calling  himself  an  agent,  although  this  is  sometimes  attempted. 

Payment  to  an  agent  of  money  due  to  the  principal  binds 
the  principal  only  when  it  is  made  to  the  agent  in  the  regular 
course  of  business.  Payment  to  a  sub-agent  appointed  by  the 
agent,  but  whose  appointment  is  not  authorized  by  the  principal, 
binds  the  agent,  and  renders  him  liable  to  the  principal  for  any 
loss  of  the  money  in  the  sub-agent's  hands.     Where  a  legacy 


MUTUAL  RIGHTS  OF  PRINCIPAL  AND  AGENT.       217 

was  left  to  a  tradesman,  and  the  executors  paid  it  to  a  shopman 
who  was  in  the  habit  of  receiving  daily  payments,  this  was  held 
not  a  sufificient  payment  to  discharge  the  executors.  And,  gen- 
erally, a  shopman  authorized  to  receive  money  at  the  counter, 
or  any  person  authorized  to  receive  money  at  any  particular 
place  or  in  any  particular  way,  is  not  thereby  authorized  to 
receive  it  in  any  other  place  or  in  any  other  way.  Nor  is  the 
principal  bound,  if  the  agent  be  authorized  to  receive  the  money, 
but,  instead  of  actually  receiving  it,  discharge  a  debt  due  from 
him  to  the  payer,  and  then  give  a  receipt  as  for  money  paid  to 
his  principal,  unless  it  can  be  shown  that  he  has  special  authority 
to  receive  payment  in  this  way,  or  that  such  payment  is  justified 
by  known  usage. 

In  general,  although  a  principal  may  be  responsible  for  the 
deliberate  fraud  of  his  agent  in  the  execution  of  his  employment, 
1  e  is  not  responsible  for  his  criminal  acts,  unless  he  expressly 
commanded  them.  There  is,  however,  a  class  of  cases  in  which 
the  principal  has  intrusted  property  to  his  agent,  and  the  agent 
has  used  it  illegally  ;  and  this  act  of  the  agent  is  evidence,  which, 
if  unexplained  and  unanswered,  suffices  to  render  the  principal 
liable  criminally,  without  proof  of  his  direct  participation  in  the 
act  itself.  The  smuggling  of  goods,  the  issue  of  libellous  pub- 
lications, and  the  sale  of  intoxicating  liquors,  by  agents,  belong 
to  this  class. 

SECTION   VIII. 

MUTUAL   RIGHTS    AND    DUTIES    OF    PRINCIPAL   AND    AGENT. 

An  agent  cannot  depart  from  his  instructions  without  making 
himself  liable  to  his  principal  for  the  consequences.  In  deter- 
mining the  purport  or  extent  of  his  instructions,  custom  and 
usage  in  like  cases  will  often  have  great  influence ;  because, 
on  the  one  hand,  the  agent  is  entitled  to  all  the  advantages 
which  a  known  and  established  usage  would  give  him  ;  and,  on 
the  other,  the  principal  has  a  right  to  expect  that  his  agent  will 
conduct  himself  according  to  such  usage.  But  usage  is  never 
permitted  to  prevail  over  express  instructions.  A  principal  who 
accepts  the  benefit  of  an  act  done  by  his  agent  beyond  or  aside 
from  his  instructions,  discharges  the  agent  from  responsibility 


2i8  AGENCY. 

therefor.  And  any  unnecessary  delay  in  renouncing  the  trans- 
action, or  any  endeavor  to  wait  and  make  a  profit  out  of  it,  is 
an  acceptance  of  the  act.  But  if  the  agent  has  bought  goods  for 
his  principal  without  authority,  the  latter  may  renounce  the 
purchase,  and,  nevertheless,  hold  the  goods  as  security  for  his 
money,  if  that  has  been  advanced  on  them. 

In  general,  every  agent  is  entitled  to  indemnity  from  his 
principal,  when  acting  in  obedience  to  his  lawful  orders,  or  when 
he,  in  conformity  with  his  instructions,  does  an  act  which  is  not 
wrong  in  itself,  and  which  he  is  induced  by  his  principal  to 
suppose  right  at  that  time. 

An  attorney  or  agent  cannot  appoint  a  sub-attorney  or  agent, 
unless  authorized  to  do  so  expressly,  or  by  a  certain  usage,  or 
by  the  obvious  reason  and  necessity  of  the  case.  Thus,  a  con- 
signee or  factor  for  the  sale  of  merchandise  may  employ  a 
broker  to  sell,  when  this  is  the  usual  course  of  business.  A 
sub-agent,  appointed  without  such  authority,  is  only  the  agent 
of  the  agent,  and  not  the  agent  of  the  principal ;  unless  his 
appointment  is  in  some  vvay  authorized  or  connrmed  and  ratified 
by  the  principal. 

An  agent  is  bound  to  use,  in  the  affairs  of  his  principal,  all 
that  care  and  skill  which  a  reasonable  man  would  use  in  his  own. 
And  he  is  also  bound  to  the  utmost  good  faith.  Where,  how- 
ever, an  agent  acts  gratuitously,  without  an  agreement  for 
compensation,  or  any  legal  right  to  compensation  growing  ouv" 
of  his  services,  he  will  not  be  held  responsible  for  other  thaa 
gross  negligence.  A  strictly  gratuitous  agent  will  be  held  re- 
sponsible for  property  intrusted  to  him,  if  it  be  lost  or  injured 
by  his  gross  negligence. 

For  any  breach  of  duty,  an  agent  is  responsible  for  the 
whole  injury  thereby  sustained  by  his  principal;  and,  generally, 
a  verdict  against  the  principal  for  misconduct  of  the  agent 
measures  the  claim  of  the  principal  over  against  the  agent. 
The  loss  must  be  capable  of  being  made  certain  and  definite; 
and  then  the  agent  is  responsible,  if  it  could  not  have  happened 
but  for  his  misconduct,  although  not  immediately  caused  by  it. 
Thus,  where  an  insurance-broker  was  directed  to  effect  insurance 
on  goods  "from  Gibraltar  to  Dublin,"  and  caused  the  policy  to 


MUTUAL  RIGHTS  OF  PRINCIPAL  AND  AGENT.      219 

be  made,  "beginning  from  the  lading  of  the  goods  on  board," 
and  they  were  laden  on  board  at  Malaga,  and  went  thence  to 
Gibraltar,  and  sailed  for  Dublin,  and  were  lost  on  the  voyage, 
so  that  the  policy  did  not  cover  them  because  they  were  not 
laden  at  Gibraltar,  this  was  held  to  be  gross  negligence  on  his 
part,  and  he  was  held  responsible  for  the  value  of  the  goods. 

If  any  agent  embezzles  his  employer's  property,  it  is  quite 
clear  that  the  employer  may  reclaim  it  whenever  and  wherever 
he  can  distinctly  trace  and  identify  it.  But  if  it  be  blended 
indistinguishably  with  the  agent's  own  goods,  and  the  agent  die 
or  become  insolvent,  the  principal  can  claim  only  as  a  common 
creditor,  as  against  other  creditors  ;  but  as  against  the  factor  or 
agent  himself,  the  whole  belongs  in  law  to  the  principal ;  because 
the  factor  or  agent  had  no  right  thus  to  mix  up  the  property  of 
another  with  his  own,  and  if  he  chooses  to  do  so,  he  must  lose 
all  of  his  own  property  that  cannot  be  separated  from  that 
which  is  not  his  own. 

An  agent  employed  to  sell  property  cannot  buy  it  himself ; 
nor,  if  emplo}'ed  to  buy,  can  he  buy  of  himself ;  unless  expressly 
authorized  to  do  so.  Nor  can  a  trustee  purchase  the  property 
he  holds  in  trust  for  another.  But  the  other  party  may  ratify 
and  confirm  such  sale  or  purchase  by  bis  agent ;  and  he  will  do 
this  by  accepting  the  proceeds  and  delating  any  objection  for  a 
long  time  after  the  wrongful  act  is  made  known  to  him.  Am' 
if  a  trustee  or  agent  to  sell  property  buys  it,  not  in  his  ow)\ 
name,  but  through  somebody  else,  the  sale  is  void. 

Among  the  obvious  duties  of  all  agents  is  that  of  keeping 
an  exact  account  of  their  doings,  and  particularly  of  all 
pecuniary  transactions.  After  a  reasonable  time  has  elapsed, 
the  court  will  presume  that  such  an  account  was  rendered, 
accepted,  and  settled.  Otherwise,  every  agent  might  always 
remain  liable  to  be  called  upon  for  such  account.  jNIoreover,  ha 
is  liable  not  only  for  the  balances  in  his  hands,  but  for  interest; 
or  even,  where  there  has  been  a  long  delay  to  his  own  profit,  he 
might  be  liable  for  compound  interest,  on  the  same  ground  on 
which  it  has  been  charged  in  similar  cases  against  executors, 
trustees,  and  guardians.  No  interest  whatever  would  be  charged, 
if  such  were  the  intention  of  the  parties,  or  the  effect  of  the 


220  AGENCV. 

bargain  between  them ;  and  this  intention  may  be  inferred 
either  from  direct  or  circumstantial  evidence, — as  the  nature  of 
the  transaction,  or  the  fact  that  the  principal  knew  that  the 
money  lay  useless  in  the  agent's  hands,  and  made  no  objection 
or  claim. 

The  general  rule  is,  that  a  principal  may  revoke  his  agency, 
and  an  agent  may  throw  up  the  agency,  at  pleasure.  But  neither 
would  be  permitted  to  exercise  this  power  in  an  unfair  and 
rnjurious  manner  which  circumstances  do  not  require  or  justify, 
without  being  responsible  to  the  other  party  for  any  damages 
caused  by  his  wrongful  act. 

Insanity  revokes  authority,  especially  if  legally  ascertained. 
But  if  the  principal,  when  sane,  gave  an  authority  to  his  agent, 
and  a  third  party  acts  with  the  agent  in  the  belief  of  his 
authority,  but  after  the  insanity  of  the  principal  has  revoked  it, 
the  insanity  not  being  known  to  this  third  party,  this  revocation 
will  not  be  permitted  to  take  effect  to  the  injury  of  this  third 
party. 

SECTION  IX. 

FACTORS    AND    BROKERS. 

All  agents  who  sell  goods  for  their  principals,  and  guarantee 
the  price,  are  said  in  Europe  to  act  under  a  dc/  credere  coimiiis- 
iioii.  In  this  country,  this  phrase  is  seldom  used,  nor  is  such 
guaranty  usually  given,  except  by  commission-merchants.  And 
where  such  guaranty  is  given,  the  factor  is  so  far  a  surety,  that 
nis  employers  must  first  have  recourse  to  the  principal  debtor. 
Still  his  promise  is  not  "a  promise  to  pay  the  debt  of  another," 
within  the  Statute  of  Frauds.  Nor  does  he  guarantee  the  safe 
arrival  of  the  money  received  by  him  in  payment  of  the  goods, 
and  transmitted  to  his  employer,  but  he  must  use  proper  caution 
in  sending  it.  And  if  it  is  agreed  that  he  shall  guarantee  the 
remittance,  and  charge  a  commission  for  so  doing,  he  is  liable, 
although  he  does  not  charge  the  commission.  If  he  takes  a 
note  from  the  purchaser,  this  note  is  his  employer's  ;  and  if  he 
takes  depreciated  or  bad  paper,  he  must  make  it  good. 

A  broker  or  factor  is  bound  to  the  care  and  skill  properly 
belonging  to  the  business  which  he  undertakes,  and  is  responsi- 
ble for  the  want  of  it. 


FACTORS  AXD  BROKERS.  221 

A  factor  intrusted  with  goods  may  pledge  them  for  advances 
to  his  principal,  or  for  advances  to  himself  to  the  extent  of  his 
lien  for  charges  and  commissions.  And  his  power  to  pledge 
them,  which  grows  out  of  the  law-merchant,  has  been  much 
enlarged  by  statute  in  many  of  our  States. 

The  mere  wishes  or  intimations  of  his  employer,  if  suffi- 
ciently distinct,  have  the  force  of  instructions.  Thus,  in  New 
York,  a  principal  wrote  to  his  factor,  stating  that  he  thought 
there  was  a  short  supply  of  the  goods  he  had  consigned,  and 
giving  facts  on  which  his  opinion  was  founded,  and  concluded, 
"  I  have  thought  it  best  for  you  to  take  my  pork  out  of  the 
market  for  the  present,  as  thirty  days  will  make  an  important 
change  in  the  value  of  the  article."  This  was  considered  by 
the  court  to  be  a  distinct  instruction,  binding  upon  the  factor; 
and  he  was  therefore  held  liable  for  the  loss  caused  by  selling 
the  pork  within  the  thirty  days. 

All  instructions  the  agent  or  factor  must  obey ;  but  may 
still,  as  we  have  already  stated,  depart  from  their  letter,  if  i'l 
good  faith,  and  for  the  certain  benefit  of  his  employer,  in  au 
unforeseen  exigency.  Having  possession  of  the  goods,  he  ma^ 
insure  them ;  but  is  not  bound  to  do  so,  nor  even  to  adviso 
insurance,  unless  requested,  or  unless  a  distinct  usage  makes 
this  his  duty.  He  has  much  discretion  as  to  the  time,  terms, 
and  manner  of  a  sale,  but  must  use  this  discretion  in  good  fait]\. 
For  a  sale  which  is  precipitated  by  him  without  reason  an  J 
injuriously  is  void,  as  unauthorized.  If  he  send  goods  to  his 
principal  without  order,  or  contrary  to  his  duty,  the  principal 
may  return  them,  or,  acting  in  good  faith  and  for  the  benefit  of 
the  factor,  may  sell  them  as  the  factor's  goods. 

Although  a  factor  charges  no  guaranty  commission,  he  is 
liable  to  his  principal  for  his  own  default;  so  he  is  if  he  sells  on 
credit,  and,  when  it  expires,  takes  a  note  to  himself ;  but  if  he 
takes  at  the  time  of  the  sale  a  negotiable  note  from  a  party  in 
fair  credit,  and  the  note  is  afterward  dishonored,  this  is  the  loss 
of  his  employer,  unless  the  factor  has  guaranteed  it. 

If  he  sells  the  goods  of  many  owners  to  one  purchaser, 
taking  a  note  for  the  whole  to  himself,  and  gets  it  discounted 
for  his  own  use  or  accommodation,  he  is  then  liable  without  any 


222  AGENCY. 

guaranty  for  the  i)ayment  of  that  note.  So  he  is  if  he  gets 
discounted  for  his  own  use  a  note  taken  wholly  for  his  princi- 
pal's goods.  But  he  may  discount  the  note  to  reimburse  himself 
for  advances,  without  making  himself  liable.  If  he  sends  his 
own  note  for  the  price  to  his  employer,  he  must  pay  it. 

As  a  factor  has  possession  of  the  goods,  he  may  use  his  own 
name  in  all  his  transactions,  even  in  suits  at  law :  but  a  broker 
can  buy,  sell,  receipt,  &c.,  only  in  the  name  of  his  employer. 
So,  a  factor  has  a  lien  on  the  goods  in  his  hands  for  his  advances, 
his  expenses,  and  his  commissions,  and  for  the  balance  of  his 
general  account.  And  the  factor  may  sell  from  time  to  time 
enough  to  cover  his  advances,  unless  there  be  something  in  his 
employment  or  in  his  instructions  from  which  it  may  be  inferred 
that  he  had  agreed  not  to  do  so.  But  a  broker,  having  no 
possession,  has  no  lien.  The  broker  may  act  for  both  parties, 
and  often  does  so.  But,  from  the  nature  of  his  employment,  a 
factor  should  act  only  for  the  party  employing  him. 

A  broker  has  no  authority  to  receive  payment  for  the  goods 
he  sells,  unless  that  authority  be  given  him,  expressly  or  by 
i:jsage.  Nor  will  payment  to  a  factor  discharge  a  debtor  who 
has  received  notice  from  the  principal  not  to  make  such  pay- 
ment. 

Generally,  neither  factor  nor  broker  can  claim  their  com- 
missions until  their  whole  service  be  performed,  and  in  good 
faith,  and  with  proper  skill,  care,  and  industry  ;  and  tl:eir 
negligence  may  be  given  in  evidence  either  to  lessen  their 
compensation  or  commissions,  or  to  bar  them  altogether,  l^ut 
if  the  service  begins,  and  is  interrupted  wholly  without  their 
fault,  they  may  claim  a  proportionate  compensation.  If  either 
bargains  to  give  his  whole  time  to  his  employer,  he  will  not  be 
permitted  to  derive  any  compensation  for  services  rendered  to 
other  persons.  Nor  can  either  have  any  valid  claim  against 
any  one  for  illegal  services,  or  those  which  violate  morality  or 
public  policy. 

A  principal  cannot  revoke  an  authority  given  to  a  factor, 
after  advances  made  by  the  factor,  without  repaying  or  securing 
the  factor. 

The  distinction   between  a  foreign  and  a  domestic  factor  is 


FORMS  OF  POWER  OF  ATTORNEY,  ETC.  223 

quite  important,  as  they  have  quite  different  rights,  ckities,  and 
powers,  by  the  law-merchant  generally.  A  domestic  factor  is 
one  who  is  employed  and  acts  in  the  same  country  with  his 
principal.  A  foreign  factor  is  one  employed  bya  principal  who 
lives  in  a  different  country  ;  and  a  foreign  factor  is  as  to  third 
parties — for  most  purposes  and  under  most  circumstances — a 
principal.  Thus,  they  cannot  sue  the  principal,  because  they 
are  supposed  to  contract  with  the  factor  alone,  and  on  his 
credit,  although  the  principal  may  sue  them  ;  and  a  foreign 
factor  is  personally  liable,  although  he  fully  disclose  his  agency, 
and  his  principal  is  known. 

The  following  forms  of  powers  of  attorney  are  those  most 
frequently  required  ;  and  from  them,  by  suitable  alterations, 
powers  of  attorney  may  be  framed  for  any  purpose  : 

(71.) 
Power  of  Attorney, 
Know  all  Men  by  these  Presents,  That  I  {the  name  of  the 

p7-incipal  07-  party  appointing)  of  {residence) 

have  constituted,  ordained,  and  made,  and  in  my  stead  and  place  put,  and 
by  these  presents  do  constitute,  ordain,  and  make,  and  in  my  stead  and 
place  put  {tiame  of  attorney)  to  be  my  true,  sufficient,  and  lawful  attorney 
for  me  and  in  my  name  and  stead  to  {here  set  forth  the  purposes  for  whicM 
the  power  is  given) 

Giving  and  hereby  granting  unto  him,  the  said  attorney,  full  power  ancS 
authority  in  and  about  the  premises  ;  and  to  use  all  due  means,  course,  ana 
process  in  law,  for  the  full,  effectual,  and  complete  execution  of  the  busi- 
ness afore  described  ;  and  in  my  name  to  make  and  execute  due  acquittance 
and  discharge  ;  and  for  the  premises  to  appear,  and  the  person  of  me  the 
constituent  to  represent  before  any  governor,  judges,  justices,  officers,  and 
ministers  of  the  law  whatsoever,  in  any  court  or  courts  of  judicature,  and 
there  on  my  behalf,  to  answer,  defend,  and  reply  unto  all  actions,  causes, 
matters,  and  things  whatsoever  relating  to  the  premises.  Also  to  submit 
any  matter  in  dispute,  respecting  the  premises,  to  arbitration  or  otherwise  ; 
with  full  power  to  make  and  substitute,  for  the  purposes  aforesaid,  one  or 
more  attorneys,  under  him,  my  said  attorney,  and  the  same  again  at  pleasure 
to  revoke.  And  generally  to  say,  do,  act,  transact,  determine,  accomplish, 
and  finisli  all  matters  and  things  whatsoever  relating  to  the  premises,  as 
fully,  amply  and  effectually,  to  all  intents  and  purposes,  as  I  the 

said  constituent,  if  present,  ought  or  might  personally,  although  the  matter 
should  require  more  special  authority  than  is  herein  comprised,  I 


224 


AGENCY. 


the  said  constituent  ratifying,  allowing,  and  holding  firm  and  valid  all  what- 
soever my  said  attorney  or  his  substitutes  shall  lawfully  do,  or  cause  to  be 
done,  in  and  about  the  premises,  by  virtue  of  these  presents. 

In  "Witness  Whereof,  I    have   hereunto   set   my  hand    and   seal  this 
day  of  in  the  year  of  our  Lord  eighteen  hundred  and 

(Signature.)     (Seal.) 
Signed,  Sealed^  and  Delivered  in  Presence  of  us 

Sometimes  a  power  of  attorney  is  given  without  any  power 
of  substitution.  This  may  be  by  inadvertence,  or  because  it 
was  not  intended  that  the  attorney  should  substitute  anybody 
in  his  place.  Afterwards,  it  is  desired  to  give  him  this  power 
to  substitute  others.  And  this  may  be  done  by  a  separate 
instrument. 

(72.) 
Power  of  Substitution. 

Know  all  Men  by  these  Presents,  That  I 
by  virtue  of  the  power  and  authority  to  me  given,  in  and  by  the  letter  of 
attorney  of  {the  principal)  which  is  hereunto  annexed  {or  described 

-ivithout  being  annexed),  do  make,  substitute  and  appoint  {name  of  sub- 

stitute) as  well  for  me  as  the  true  and  lawful  attorney  and  substitute  of  the 
said  constituent  named  in  the  said  letter  of  attorney,  to  do,  execute,  and 
perform  all  and  everything  requisite  and  necessary  to  be  done,  as  fully,  to 
all  intents  and  purposes,  as  the  said  constituent  or  I  myself  could  do  if 
personally  present;  hereby  ratifying  and  confirming  all  that  the  said  attorney 
and  substitute  hereby  made  shall  do  in  the  premises  by  virtue  hereof  and  of 
the  said  letter  of  attorney. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and 

{Signature.)        {Seal.) 

Executed  and  Delivered  in  the  Presence  of 

(73.) 
Power  of  Attorney  in  a  Shorter  Form. 
Know  all  Men  by  these  Presents,  That  I  {naifte  of  principals 

have  made,  constituted  and  appointed,  and  by  these  presents  do  make,  con- 
stitute and  appoint         {name  of  attorney)  my  true  and  lawful  attorney  for 
me  and  in  my  name,  place,  and  stead  to 
{here  describe  the  thing  to  be  done) 

giving  and  granting  unto  my  said  attorney  full  power  ar.d  authority  to  dc? 
and  perform  all  and  every  act  and  thing  whatsoever  requisite  and  necessary 
to  be  done  in  and  about  the  premises,  as  fully  to  all  intents  and  purposes, 


FOI^.'-S  OF  POWER  OF  ATTORNEY,  ETC.  225 

as  I  m'ghtor  could  do  if  i^ersonally  present,  with  full  power  of  substitution 
r,nd  revocation,  hereby  ratifying  and  confirming  all  tliat  my  said  attorney  or 
his  substitute  shall  lawfully  do  or  cause  to  be  done  by  virtue  hereof. 
In  Witness  Whereof,   I  have  liereunto  set  my  hand  and  seal  the 

dav  of  in  the  year  one  thousand  eight  hundred 

and 

iSignahirc)        {Seal.) 

Executed  and  Delivered  in  the  Presence  of 

(74.) 
Full  Power  cf  Attorney  to  demand  and  recover  Debts. 

Know  all  Men  by  these  Presents,  That  I  {iia7;ie  of  principal) 

have  constituted,  ordained  and  made,  and  in  my  stead  and  place  put,  and  by 
these  presents  do  constitute,  ordain,  and  make,  and  in  my  stead  and  place 
put  {na}ne  of  attorney)  to  be  my  true,  sufficient  and  lawful  attorney  for 

me  and  in  my  name  and  stead,  and  to  my  use,  to  ask,  demand,  levy,  require, 
recover  and  receive  of  and  from  all  and  every  person  nr  persons  whomso- 
ever the  same  shall  or  may  concern,  all  and  singular  sum  and  sums  ot 
money,  debts,  goods,  wares,  merchandise,  effects  and  things,  whatsoever 
and  wheresoever  they  shall  and  mav  be  found  due,  owing,  payable,  belong- 
in"-  and  coming  unto  me  the  constituent,  by  any  ways  and  means  whatsoever- 
Giving'  and  hereby  Granting:  unto  my  said  attorney  full  and  whoi-,. 
s'rength,  power  and  authority  in  and  about  the  premises  :  and  to  take  and 
use  all  due  means,  course  and  process  in  the  law,  for  ihe  obtaining  and 
recovering  the  same  ;  and  of  recoveries  and  receipts  thereof,  and  in  mji' 
name  to  make,  seal  and  execute  due  acquittance  and  discharge ;  and  for  the 
premises  to  appear,  and  the  person  of  me  the  constituent  to  represent 
before  any  governor,  judges,  justices,  officers  and  ministers  of  the  la'iv 
whatsoever,  in  any  court  or  courts  of  judicature,  and  there,  on  my  behaU, 
to  answer,  defend  and  reply  unto  all  actions,  causes,  matters  and  things 
whatsoever,  relating  to  the  premises.  Also  to  submit  any  matter  in  dispute 
to  arbitration  or  otherwise,  with  full  power  to  make  and  substitute  one  or 
more  attorneys  under  my  said  attorney,  and  the  same  again  at  pleasure  to 
revoke.  And  generally  to  say,  do,  act,  transact,  determine,  accomplish  and 
finish  all  matters  and  things  whatsoever,  relating  to  the  premises,  as  fully, 
amply,  and  effectuallv,  tn  all  intents  and  purposes,  as  I  the  said  constituent 
if  present,  ought  or  might  personally,  although  the  matter  should  require 
more  special  authority  than  is  herein  comprised,  I  the  said  constituen 
ratifying,  allowing  and  heckling  firm  and  valid,  all  and  whatsoever  mj'  sa, 
attorney  or  his  substitutes  shall  lawfully  do.  or  cause  to  be  done,  in  and 
about  the  premises,  by  virtue  of  these  presents. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal,  this 

day  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 

{Signature.)  {Seal.) 

Signed,  Sealed,  and  Delivered  in  presence  of  us, 
15 


226  AGEA'Cl'. 

(75.) 
Power  of  Attorney  to  sell  and  deliver  Chattels. 

Know  all  Men  by  these  Presents,  That  I,  the  undersigned,  for  value 
received,  do  hereby  constitute  and  appoint 

to  be  my  true  and  lawful  attorney,  for  me  and  in  my  name  and 
behalf,  to  sell,  transfer,  and  deliver  unto  or  any 

other  person  or  persons  {/lere  describe  the  things  to  be  sold) 
And  further,  one  or  more  persons  under  him  to  substitute  with  like  power. 
In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  this 

day  of  i8 

( Witnesses.)  {Signature.)         {Seal.) 

(76.) 
Power  of  Attorney  given  by  Seller  to  Buyer. 

Know  all  Men  by  these  Presents,  That  I 
for  value  received,  have  bargained,  sold,  assigned,  and  transferred,  and  by 
\hese  presents  do  bargain,  sell,  assign,  and  transfer,  unto  {name  of  the 

buyer)  the  following  articles,  namely,  {describe  the  articles)  and  I  do 

hereby  constitute  and  appoint  the  said  {the  buyer)  my  true  and  lawful 

attorney  irrevocable,  for  me  and  in  my  name  and  stead,  but  to  my  use,  to 
sell,  assign,  transfer,  and  set  over  all  or  any  part  of  the  said  {the  goods) 

and  for  that  purpose  to  make  and  execute  all  necessary  acts  of  assignment 
and  transfer,  and  one  or  more  persons  to  substitute  with  like  full  power, 
hereby  ratifying  and  confirming  all  that  my  said  attorney  or  his  substitute  or 
imbstitutes  shall  lawfully  do  by  virtue  hereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal,  the 

day  of  one  thousand  eight  hundred 

and 

{Signature^     {Seal.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

(77.) 

Power  of  Attorney  to  sell  Shares  of  Stock,  with  Ap- 
pointment by  Attorney  of  Substitute. 

Know  all  Men  by  these  Presents,  That,  for  value  received,  I  {name 
of  the  principal)  of  do  hereby  make,  constitute,  and 

appoint  irrevocably,  my  true  and  lawful  attorney  (with 

power  of  substitution),  for  and  in  my  name  and  on  my  behalf,  to  sell,  assign, 
and  transfer  unto  {name  of  buyer)  share     now  standing  in  my  name 

in  the  capital  or  joint  stock  of  the 
And  my  said  attorney  is  hereby  fully  empowered  to  make  and  pass  all  neces- 
sary acts  for  the  said  assignment  and  transfer. 

Witness  my  hand  and  seal,  i8 

{Signature.)     {Seal.) 

Signed.  .'Sealed,  and  Delivered  in  the  Presence  of 


FORMS  OF  POWER  OF  ATTORNEY,  ETC.  227 

For  value  received,  I  appoint,  irrevocably,  {nntnc  of  the  sitbstiticte)  as  my 
substitute,  with  a'l  the  powers  above  given  to  me. 

Witness  my  iiand  and  seal,  18 

{Signature^    {Seal.) 
Signed,  Sealed,  and  Delivered  in  the  Presence  of 

(78.) 
Power  of  Attorney  to  Subscribe  for  Stock. 
Know  all  Men  by  these  Presents,  That  I,  the  undersigned,  do  hereby 
irrevoc^ibly  constitute  and  appoint  to  be  my  true  and 

lawful   attorney,  for  me  and  in  my  name  and  behalf  to  subscribe  for 
shares  in  the  capital  stock  of  the  And  further,  one  or  more 

persons  under  him  to  substitute  with  like  power. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal,  this 

day  of  18 

Witnesses  present,  (Seal.) 

(79.) 
Proxy,  or  Power  of  Attorney  to  Vote. 

Know  all  Men  by  these  Presents,  That  I         {name  of  the  principal) 

of  do  hereby  appoint  to  be  my  substitute 

and  proxy  for  me,  and  in  my  name  and  behalf  to  vote  at  any  election  of 

directors  or  other  officers,  and  at  any  meeting  of  the  stockholders  of  the 

,  as  fully  as  I  might  or  could  were  I  personally  present. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal,  this 

day  of  18 

Witnesses  present,  {Signature) 

(80.) 
Proxy,  Revoking  all  Previous  Proxies. 
Know  all  Men  by  these  Presents,    That  I,  the   undersigned,  stock- 
holder in  the  {7iame  of  the  company)  do  hereby  appoint 

my  true  and  lawful  attorney,  with  power  of  substitution, 
for  me  and  in  my  name  to  vote  at  the  meeting  of  the  stockholders  in  said 
company,  to  be  held  at  or  at  any  adjournment 

thereof,  with  all  the  powers  I  should  possess  if  personally  present,  hereby 

revoking  all  previous  proxies. 

i8 

Witness,  {Signature) 

(81.) 
Proxy,  with  Afl&davit  of  Ownership,  in  Use  in  New  York. 

Know  all  Men  by  these  Presents,  That  I,  do  hereby 

constitute  ard  appoint  my  attorney  and  agent  for  me 

and  in  my  name,  place,  and  stead,  to  vote   as  my  proxy  at  any  election  of 
directors  of  the  according  to  the  numl^er  of 

votes  I  should  be  entitled  to  vote  if  then  personally  present. 


228  PARTNERSHIP. 

In  "Witness  Whereof,  I  have  hereto  set  my  hand  and  seal,  this 
day  of  one  thousand  eight  hundred  and 

{Signahire.)     {Seal.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

I  do  swear  {or  affi,7'-7n)  that  the  shares  on  which  my  attorney  and 
agent  in  the  above  proxy  is  authorized  to  vote,  do  not  belong,  and  are  no* 
hypothecated  to  the  said  company,  and  that  they  are  not  hypothecated  or 
pledged  to  any  other  corporation  or  person  whatever  ;  that  such  shares  have 
not  been  transferred  to  me  for  the  purpose  of  enabling  me  to  vote  thereoa 
at  the  ensuing  election,  and  that  I  have  not  contracted  to  sell  or  transfer 
them  upon  any  condition,  agreement,  or  understanding,  in  relation  to  my 
manner  of  voting  at  the  said  election. 

Sworn  to  this  day  of  l8        ,  before  me, 

{Signature^ 
(82.) 
Power  to  Receive  Dividend. 

Know  all  Men  by  these  Presents,  That  I,  of 

do  authorize,  constitute,  and  appoint  to  receive 

from  the  {iiame  of  the  coinpa7iy)  the  dividend  now  due  to  me  on  all 

stock  standing  to  my  name  on  the  books  of  the  said  company,  and  receipt 
for  the  same  ;  hereby  ratifying  and  confirming  all  that  may  lawfully  be  done 
in  the  premises  by  virtue  hereof. 

Witness   my  hand  and  seal,  this  day  of  i8 

{Signature^     {Seal.) 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 


CHAPTER  XVIII. 

PARTNERSHIP. 


SECTION  I. 

WHAT   A   PARTNERSHIP   IS. 

When  two  or  more  persons  combine  their  property,  labor,  or 
skill,  for  the  transaction  of  business  for  their  common  profit, 
they  enter  into  partnership.  Sometimes  the  word  "firm"  is 
used  as  synonymous  with  partnership ;  sometimes,  however,  it 
means  only  the  copartnership-name. 


HO IV  A  PARTNERSHIP  MA  V  BE  FORMED.  229 

A  single  joint  transaction,  out  of  which,  considered  by 
Itself,  neither  profit  nor  loss  arises,  will  not  create  a  partner- 
ship. If  a  joint  purchase  be  made,  and  each  party  then  takci 
Ins  distinct  and  several  share  of  the  goods,  this  is  no  part 
nership. 

Any  persons  competent  to  transact  business  on  their  own 
account  may  enter  into  partnership  for  that  purpose,  and  no 
others. 

SECTIOx\   II. 

HOW  A  PARTNERSHIP  MAY  BE  FORMED. 

No  especial  form  or  manner  is  necessary.  It  may  be  by  oral 
agreement,  or  by  a  written  agreement,  which  may  have  a  seal 
"r  not.  But  the  liability  and  authority  of  the  partners  begin 
'»rith  the  actual  formation  of  the  partnership,  and  do  not  wait 
ivDr  the  execution  of  any  articles.  In  general,  if  there  be  an 
agreement  to  enter  into  business,  or  into  some  particular  trans- 
action, together,  and  share  the  profits  and  losses,  this  constitutes 
a  partnership,  which  is  just  ?"s  extensive  as  the  business  pro- 
posed to  be  done,  and  not  more  so.  The  parties  may  agree  to 
share  the  profits  in  what  proportion  they  choose  ;  but  in  the 
absence  of  any  agreement,  the  law  presumes  equal  shares. 

They  may  agree  as  to  any  way  of  dividing  the  losses,  or 
even  that  one  or  more  partners  alone  shall  sustain  them  all, 
'•vithout  loss  to  the  rest.  And  this  agreement  is  valid  as  between 
.hemselves ;  but  it  will  not  protect  those  partners  who  were  to 
sustain  no  loss  from  responsibility  to  third  parties,  unless  the 
third  parties  knew  of  this  agreement  between  the  partners,  and 
gave  credit  accordingly.  If  A,  B,  &  C,  being  partners,  agree 
that  A  should  not  lose  anything  by  their  business,  and  a 
person  knowing  this  bargain  dealt  with  the  firm  on  the  credit 
of  B  &  C,  he  could  not  call  on  A.  But  an  agreement  exempt- 
ing partners  from  loss  generally,  or  from  loss  beyond  the 
amount  invested,  will  only  operate  between  the  partners,  unless 
it  can  be  shown  that  the  third  party  not  only  knew  the  agree- 
ment, but  contracted  with  the  firm  on  the  basis  of  this  agree- 
ment. And,  generally,  stipulations  in  articles  of  copartnership 
limiting  the  power  of  a  partner,  are  not  binding  on  third  parties 


230  PARTXERSHIP. 

who  are  ignorant  of  them.  Each  partner  is  absolutely  responsi- 
ble to  every  creditor  of  the  copartnership  for  the  wliole  amount 
of  the  debt.  And  if  thereby  obliged  to  suffer  loss,  his  only 
remedy  is  against  the  other  partners. 

Although  partners  may  agree  and  provide  as  they  will  in 
their  articles,  a  long  neglect  of  these  provisions  will  be  regarded 
as  a  mutual  waiver  of  them. 

Persons  may  be  liable  as  partners  to  third  parties  or  strangers, 
who  are  not  partners  as  between  themselves.  Whether  they 
are  partners  as  to  each  other  would  generally  be  determined  by 
the  intention  of  the  parties,  as  drawn  from  their  contract, — 
whether  oral  or  written, — under  the  ordinary  rules  of  evidence 
and  construction.  But  whether  one  is  liable  as  a  partner  to  one 
who  deals  with  the  firm  must  depend  in  part  upon  his  intention, 
but  more  upon  his  acts  ;  for  if  by  them  he  justifies  those  who 
deal  with  the  firm  in  thinking  him  a  partner  in  that  business, 
he  must  bear  the  responsibility ;  as  if  he  declare  that  he  has  a 
joint  interest  in  the  property,  or  conducts  the  business  of  the 
firm  as  a  partner,  accepting  bills,  or  suffers  his  name  to  be  used 
upon  cards,  or  in  advertisements,  or  on  signs,  or  in  any  similar 
manner.  The  declarations  or  acts  of  one  person  cannot, 
however,  make  another  person  liable  as  partner,  without 
co-operation  or  consent,  by  word  or  act,  on  his  part.  The  ruk 
is  this :  that  one  who  thus  holds  himself  out  as  a  partner,  when 
he  really  is  not  one,  is  responsible  to  a  creditor  who  on  thest- 
grounds  believed  him  to  be  a  partner  ;  but  not  to  one  wh-'. 
knew  nothing  of  the  facts,  or  who,  knowing  them,  knew  alsv> 
that  this  person  was  not  a  partner. 

A  secret  partner  is  one  who  is  actually  a  partner  by  partici- 
pation  of  profit,  but  is  not  avowed  or  known  to  be  such  ;  and  a 
dormant  partner  is  one  who  takes  no  share  in  the  conduct  or 
control  of  the  business  of  the  firm.  Both  of  these  are  liable 
to  creditors  (even  if  the  creditors  did  not  know  them  to  be 
members  of  the  firm),  on  the  ground  of  their  interest  and 
participation  in  the  profits,  which  constitute,  with  the  property 
of  the  firm,  the  funds  to  which  creditors  may  look  for  payment. 
A  nominal  partner  is  one  who  holds  himself  out  to  the  world  as 
such,  but  is  not  so  in  fact.     He  is  liable  to  creditors  of  the  firm, 


HO IV  A  PARTNERSHIP  MAY  BE  DISSOLVED. 


2^1 


on  the  ground  that  he  justifies  them  in  trusting  the  firm  on  his 
credit,  and,  indeed,  invites  them  to  do  so  by  declaring  himself 
to  be  a  partner. 

The  principal  test  of  membership  in  a  mercantile  firm  is 
said  to  be  the  participation  in  the  profits.  Thus,  if  one  lend 
money  to  be  used  in  a  business,  for  which  he  is  to  receive  a 
share  in  the  profits,  this  would  make  him  a  partner  ;  and  if  he 
is  to  receive  lawful  interest,  and,  in  addition  thereto,  a  share  c£ 
the  profits,  this  would  generally  make  him  liable  as  a  partner  to 
a  creditor  of  the  firm. 

Sometimes  a  clerk  or  salesman,  or  a  person  otherwise 
employed  for  the  firm,  recei\cs  a  share  of  the  profits,  instead 
of  wages,  ('ormerly  it  was  held,  that  if  such  person  received 
any  certain  share,  say  "one-tenth  part  of  the  net  annual  profits," 
this  made  him  liable  as  a  partner;  but  if  he  received  "a  salary 
equal  in  amount  to  one-tenth  of  the  net  profits,"  this  did  not 
make  him  a  partner.  Now,  the  courts  would  look  more  at  the 
actual  intention  of  the  parties,  and  their  actual  ownership  of 
an  interest  in  the  funds  of  the  partnership,  and  not  be  governed 
by  the  mere  phraseology  used.  If  in  fact  he  works  for  wages, 
although  these  wages  are  measured  by  the  profits,  he  is  no 
partner,  and  therefore  not  liable  for  the  debts,  as  every  part- 
ner is. 

Hence,  factors  and  brokers  for  a  commission  on  the  profits, 
masters  of  vessels  who  engage  for  a  share  of  the  profits,  o\ 
seamen  employed  in  whale-ships,  are  none  of  them  partners. 

A  partnership  usually  has  but  one  business  name  ;  but  there 
does  not  seem  to  be  any  legal  objection  to  the  use  of  two 
names,  especially  for  distinct  business  transactions  ;  as  A  B  & 
Co.  for  general  business,  and  the  name  of  A  C  &  Co.  for 
the  purpose  of  making  or  indorsing  negotiable  paper. 

SECTION  III. 

HOW  A  PARTNERSHIP  MAY  BE  DISSOLVED. 

If  the  articles  between  the  partners  do  not  contain  an 
agreement  that  the  partnership  shall  continue  for  a  specified 
time,  it   may  be  dissolved  at  the  pleasure   of    either   partner. 


232  PARTNERSHIP. 

But  no  partner  can  exercise  this  power  wantonly  and  injuriously 
to  the  other  partners,  without  making  himself  responsible  for 
the  damage  he  thus  causes.  If  there  be  a  provision  that  the 
partnership  shall  continue  a  certain  time,  this  is  binding. 

If  either  partner  were  to  undertake  to  assign  his  interest, 
for  the  purpose  of  withdrawing  from  the  firm,  against  the  will 
of  the  partners,  without  good  reason,  and  in  fraud  of  his  express 
agreement,  a  court  of  equity  would  interfere  and  prevent  him. 
For  the  assignment  of  a  partner's  interest,  or  of  his  share  of 
the  profits,  operates  at  once  a  dissolution  of  the  partnership. 

Such  assignment  may  transfer  to  the  assignee  the  whole 
interest  of  the  assignor,  but  cannot  give  him  a  right  to  become 
a  member  of  the  firm.  There  seems  to  be  an  exception  to  this 
rule  where  the  partnership  is  very  numerous,  and  the  manner 
cf  holding  shares,  by  scrip  or  otherwise,  indicates  the  original 
ivitention  of  making  the  shares  transferable.  Such  a  partner- 
ship is  in  effect  a  joint-stock  company;  which  form  of  associa- 
tion is  not  usual  here,  because  incorporation  is  better,  and  is 
easily  obtained. 

Death  of  a  general  or  even  of  a  special  partner  operates  a 
dissolution  ;  and  the  personal  representatives  of  the  deceased 
do  not  take  his  place,  unless  there  be  in  the  articles  an  express 
provision  that  they  shall.  And  such  provisions  are  construed 
5is  giving  the  heirs  or  personal  representatives  the  right  of 
electing  whether  to  become  partners  or  not.  If  either  party 
is  unable  to  do  his  duty  to  the  partnership,  as  by  reason  of 
insanity  or  a  long  imprisonment,  or  if  he  be  guilty  of  material 
wrong-doing  to  the  firm,  a  court  of  equity  will  decree  a  dissolu- 
tion. And  if  the  original  agreement  were  tainted  with  fraud, 
the  court  will  declare  it  void,  from  its  beginning. 

Whenever  a  court  of  equity  decrees  a  dissolution  of  the 
partnership,  it  will  also  decree  that  an  account  be  taken  between 
the  partners,  if  requested  by  either  partner.  And  if  necessary 
to  do  justice,  it  will  decree  a  sale  of  the  effects  and  a  distribu- 
tion of  the  proceeds,  after  a  consideration  of  all  the  facts  of  the 
case  and  the  whole  condition  of  the  firm.  Such  a  decree  will 
be  made  if  a  partner  die  or  become  bankrupt. 

If  the  whole  interest  of  a  copartner  is  levied  upon  and  sold 


THE  PROPERTY  OE  THE  PARTNERSHIP.  233 

cn  execution,  this  makes  a  dissolution,  and  the  purchaser 
becomes, — like  every  other  assignee  of  a  partner, — not  a  part- 
ner, but  only  a  tenant  in  common  (tliat  is,  a  joint  owner)  with 
the  other  partners ;  but  if  the  levy  and  sale  are  only  of  a  part, 
which  may  be  severed  from  the  rest,  this  may  not  operate  a 
dissolution  except  as  to  that  part. 

If  one  partner  retires,  this  operates  in  law  a  dissolution,  and 
the  remaining  partners  const'tute  in  lav/  a  new  firm,  although 
in  fact  the  old  firm  frequently  continues  and  goes  on  with  its 
business,  with  or  without  new  members,  as  if  it  were  the  same 
firm. 

The  partner  retiring  should  withdraw  his  name  from  the 
firm,  and  give  notice,  by  the  usual  public  advertisement,  of  his 
retirement,  and  also,  by  personal  notice,  by  letter  or  otherwise, 
to  all  who  usually  do  business  with  the  firm  ;  and  after  such 
notice  he  is  not  responsible,  even  if  his  name  be  retained  in  the 
firm  by  the  other  partners,  if  this  is  done  without  his  consent. 
Nor  is  he  responsible  to  any  one  who  has  in  any  way  actual 
knowledge  of  his  retirement. 

A  dormant  or  secret  partner  is  not  liable  for  a  debt  con- 
tracted after  his  retirement,  although  he  give  no  notice,  because 
his  liability  does  not  rest  upon  his  giving  his  credit  to  the  firm, 
but  upon  his  being  actually  a  partner. 

SECTION  IV. 

THE  PROPERTY  OF  THE  PARTNERSHIP. 

A  PARTNERSHIP  may  hold  real  estate  as  v;ell  as  personal 
estate,  and  a  partnership  may  be  formed  to  trade  in  land,  or  to 
cultivate  land.  But  the  rules  of  law  in  respect  to  real  estate, 
as  in  relation  to  title,  conveyance,  dower,  inheritance,  and  the 
like,  make  some  difference.  As  far,  however,  as  is  compatible 
with  these  rules,  it  seems  to  be  agreed  that  the  real  estate  of 
the  partnership  is  treated  as  if  it  were  personal  property,  if  it 
have  been  purchased  with  the  partnership  funds  and  for  part- 
nership purposes. 

There  is  some  difficulty  in  explaining  this  matter  to  those 
who  are  not  acquainted  with  the  peculiar  law  of  real  estate. 


234 


PARTNERSHIP. 


Thus,  no  sale  of  land  is  valid  except  by  deed,  recorded ;  and 
only  one  who  is  thus  a  grantee  under  seal  by  record  has  a 
legal  title.  But  a  court  of  equity  acknowledges  and  protects  an 
egjtitable  title  in  those  who  really  possess  all  the  interest  in  the 
land,  as  partners  do  who  have  paid  for  it,  though  it  stands  in  the 
name  of  one  partner  only.  But  a  court  of  equity  cannot  disre- 
gard the  laws  of  conveyance  and  record,  and  therefore  say  that 
this  partner  is  the  only  legal  owner,  but  that  he  owns  the  land 
as  trustee  for  the  firm.  And  then  they  compel  him  to  sell  it,  or 
otherwise  dispose  of  it,  as  the  interests  of  the  firm  or  of  their 
creditors  require. 

So  land  thus  purchased  does  not  go  to  the  heirs  of  the  part- 
ner or  partners  in  whose  name  it  may  stand,  but  is  first  subject 
to  the  debts  of  the  firm,  and  then  to  the  balance  which  may  be 
due  to  either  partner  on  winding  up  their  affairs.  But  when 
these  debts  and  claims  are  adjusted,  any  surplus  of  the  real 
estate  will  then  descend  as  real  estate,  and  not  as  personal 
estate. 

Improvements  made  with  partnership  funds  on  the  real 
estate  of  a  partner  will  be  regarded  as  partnership  property. 

The  widow  has  her  dower  only  after  the  above-mentioned 
debts  and  claims  are  adjusted.  And  while  the  legal  title  is  pro- 
tected, as  it  must  be  for  the  purpose  of  conveyance  and  other 
similar  purposes,  the  person  holding  this  legal  title  will  be  heLi 
as  a  trustee  for  the  partnership  if  the  partnership  be  entitled  to 
the  beneficiary  interest. 

But  a  purchaser  of  partnership  real  property,  without 
notice  or  knowledge,  from  a  partner  holding  the  same  by  legal 
title,  is  protected  against  the  other  partners.  If,  however,  the 
purchaser  has  such  knowledge,  the  conveyance  may  be  avoided 
as  fraudulent,  or  he  may  be  held  as  trustee,  the  land  being  in 
his  hands  chargeable  with  the  debts  and  claims  of  the  partner 
ship. 

SECTION  V. 

'IHE    AUTHORITY    OF    EACH     PARTNER,    AND   THE   JOINT    LIABILITY    OF   THE 

PARTNERSHIP. 

This  authority  is  very  great,  because  the  law-merchant 
makes  each  partner  an  agent  of  the  whole  partnership,  with  full 


A  UTH  OKI  TV  OF  EA  CH  PA  R  TNER,  E  TC.  235 

power  to  bind  all  its  members  and  all  its  property,  in  transac- 
tions which  fall  within  the  usual  business  of  the  firm  ;  as  loans, 
borrowing,  sales — even  of  the  whole  stock,  pledges,  mortgages, 
or  assignments ;  and  this  last  extends  even  to  an  honest  and 
prudent  assignment  of  the  whole  stock  and  personal  property 
to  trustees  to  pay  partnership  debts.  It  extends  to  the  making 
or  indorsing  negotiable  paper,  and  to  transactions  out  of  the 
usual  business  of  the  firm,  if  they  arose  from  and  were  fairly  con- 
nected with  that  business. 

Nor  is  any  party  dealing  with  a  partner  affected  by  his  want 
of  good  faith  towards  the  partnership,  unless  he  colluded  with 
the  partner,  and  participated  in  his  want  of  good  faith,  by  fraud 
or  gross  negligence.  But  a  holder  of  a  note  or  bill  signed  or 
indorsed  by  a  partner  without  authority,  has  no  claim  against 
the  partnership,  if  he  knew  or  should  have  kno^vn  the  want  oi 
authority. 

A  partner  cannot,  in  general,  bind  the  firm  by  a  guaranty, 
a  letter  of  credit,  or  a  submission  to  arbitration,  without  author- 
ity, because  these  things  do  not  belong  generally  and  properly 
to  commercial  business.  But  anything  so  done  by  a  partner 
may  be  adopted  and  ratified  by  the  partnership,  and  then  it  has 
the  same  force  as  if  originally  authorized.  And  this  ratification 
may  be  formal  and  express,  or  consist  only  of  acts  which  dis 
tinctly  imply  it ;  such  as  assenting  to  and  acting  with  reference 
to  it ;  and  especially  receiving  and  holding  the  beneficit^l 
results  of  it  ;  as,  for  example,  taking  and  holding  money  paid 
for  it. 

By  the  earlier  and  more  stringent  rules  of  law,  a  partner 
could  not  bind  his  copartners  by  an  instrument  under  seal  unless 
he  was  himself  authorized  under  seal  ;  and  their  subsequent 
acknowledgment  of  his  authority  did  not  cure  the  defect.  Now, 
however,  a  partner  may  bind  his  firm  by  an  instrument  under 
seal,  if  it  be  in  the  name  and  for  the  uee  of  the  firm,  and  in  the 
transaction  of  their  usual  business,  provided  the  other  copart- 
ners consent  thereto  before  execution,  or  adopt  and  ratify  the 
same  afterwards  ;  and  they  may  assent  or  ratify  by  word  as  Avell 
as  by  seal  ;  or  provided  he  could  have  made  the  same  convey- 
ance, or  done  the  same  act  effectually  without  a  deed.     And  a 


236 


PARTNERSHIP. 


deed  executed  by  one  partner  in  the  presence  and  with  the 
assent  of  the  other  partners,  will  bind  them. 

A  partnership  has  no  seal  at  law,  and  can  have  none ;  only  a 
person  or  a  corporation  can  have  a  seal.  Instruments  are  some- 
times executed  "A.  B.  &  Co.,"  and  a  seal  is  affixed  to  the  name. 
This  is,  strictly  speaking,  no  seal  at  all ;  and  if  the  instrument 
needs  a  seal  to  make  it  valid,  as  if  it  were  a  deed  of  land,  it 
would,  at  law,  be  wholly  void.  But  the  courts  in  some  of  our 
States  are  somewhat  lax  on  this  subject,  and  might  construe  it 
as  the  seal  of  each  one  of  the  partners  to  give  the  instrument 
validity, 

A  majority  of  the  members  cannot  conclusively  bind  the 
minority,  unless  in  reference  to  the  internal  concerns  of  the 
*irm  ;  as,  for  example,  the  salary  or  appointment  of  a  clerk,  the 
*  iring  or  fitting-up  of  a  counting-room,  the  manner  of  keeping 
accounts,  and  the  like.  But  one  member  may,  so  far  as  he  is 
concerned,  arrest  a  negotiation  which  was  only  begun,  and  pre- 
vent a  bargain  which  would  be  binding  on  him,  by  giving  notice 
to  the  third  party  of  his  dissent  and  refusal  in  season  to  enable 
him  to  decline  the  bargain  without  detriment. 

Partners  must  act  as  sitcli,  to  bind  each  other.  Thus,  if  a 
partner  makes  a  note,  and  signs  it  with  his  own  name  and  his 
partner's  name,  as  a  joint  and  several  note,  it  docs  not  bind  his 
partner,  for  he  had  no  authority  to  make  such  a  note. 

If  the  name  of  one  partner  be  also  the  name  of  the  firm, — 
lor  John  Smith  and  Henry  Robinson  may  do  business  as  part- 
ners under  the  name  of  "John  Smith," — this  name  is  not  neces- 
sarily the  name  of  the  firm  when  used  in  a  note  or  contract ; 
and  if  the  partner  whose  name  is  used  carries  on  mercantile 
business  for  himself,  it  will  not  be  supposed  to  be  used  as  the 
name  of  the  firm  without  sufficient  proof. 

Persons  may  give  a  joint  order  for  goods  without  becoming 
jointly  liable,  if  it  appear  otherwise  that  credit  was  given  to  them 
severally.  Nor  will  one  have  either  the  authority  or  the  obli- 
gation of  a  partner  cast  upon  him  by  an  agreement  of  the  firm 
to  be  governed  by  his  advice.  Nor  shall  one  be  charged  as 
partner  with  others  unless  he  has  incurred  the  liability  by  his 
own  voluntary  act. 


A  UTHORIT\ '  OF  EA  CH  PA R TNER,  E TC.  237 

The  reception  of  a  new  member  constitutes,  in  law,  a  new 
firm  ;  but  the  new  firm  may  reco<;"nize  the  old  debts,  as  by 
express  agreement,  or  paying  interest,  or  other  evidence  of 
adoption,  and  then  the  new  firm  is  jointly  liable  for  the  old  debt. 
But  there  must  be  some  fact  from  which  the  assent  of  the  new 
member  to  this  adoption  of  the  old  debt  may  be  inferred,  for  his 
liability  is  not  to  be  presumed. 

A  notice  in  legal  proceedings,  abandonment  to  insurers  by 
one  who  was  insured  for  himself  and  others,  a  notice  to  quit  of 
one  of  joint  lessors  or  lessees  who  are  partners  in  trade,  notice 
to  one  partner  of  the  dishonor  of  a  note  or  bill  bearing  the  name 
of  the  firm,  a  release  to  one  partner,  or  by  one  partner, — will 
bind  all  the  partners,  and  render  them  jointly  liable.  But  a 
service  of  legal  process  should  be  made  upon  each  partne? 
personally. 

If  money  be  lent  to  a  partner  for  partnership  purposes,  ir 
creates  a  partnership  debt ;  but  nc':  if  lent  expressly  on  the 
individual  credit  of  the  person  borrowing-;  and  not  if  the  boi 
rowing  partner  receives  it  to  enable  him  to  pay  his  contribution 
to  the  capital  of  the  firm.  Though  the  money  be  not  used  for 
the  firm,  if  it  was  borrowed  by  one  partner  on  the  credit  of  tha 
firm,  in  a  manner  and  under  circumstances  justifying  the  lender 
in  trusting  to  that  credit,  it  creates  a  partnership  debt.  And  i» 
a  partner  uses  funds  in  his  hands  as  trustee,  for  partnership 
purposes,  the  firm  are  certainly  jointly  bound,  if  it  was  dont 
with  their  knowledge.  And  if  it  was  done  without  their  knowl- 
edge, and  the  partners  are  distinctly  and  directly  benefited  by 
the  transaction,  they  will  be  deemed  to  have  authorized  it. 

If  in  any  case  a  person,  knowing  the  existence  of  the  firm, 
gave  credit  to  a  single  partner  only,  then  he  can  look  only  to 
that  partner,  and  not  to  the  firm,  although  the  money  was  applied 
to,  and  used  for,  partnership  purposes.  But  if  the  partner  held 
himself  out  as  borrowing  for  the  firm,  and  the  lender  without 
any  want  of  due  care  gave  credit  to  the  firm,  and  the  transac- 
tion was  a  fair  business  transaction  on  the  part  of  the  lender, 
the  firm  will  be  liable,  although  the  money  is  fraudulently  appro- 
priated by  the  partner  to  his  own  use. 

In  the  absence  of  evidence  showing  to  whom  the  credit  was 


238  PARTNERSHIP. 

given,  the  fact  that  money  lent  to  one  partner  was  applied 
to  the  use  of  the  firm  will  make  the  firm  liable  for  the  payment; 
but  not  if  the  partner  employed  it  as  his  contribution  to  increase 
the  capital  of  the  firm. 

If  the  purchaser  of  goods  or  the  borrower  of  money  have  a 
dormant  and  secret  partner,  and  the  goods  were  bought  or  the 
money  borrowed  for  partnership  purposes,  the  seller  or  lender 
may  look  to  both  partners  for  payment,  unless  the  seller  or 
lender,  knowing  all  the  partners,  gave  credit  to  one  only. 

The  firm  is  liable  only  to  one  who  deals  with  a  partner  in 
good  faith.  Thus,  if  one  receives  negotiable  paper  bearing  the 
name  of  a  firm,  knowing  that  it  is  not  in  the  business  of  the 
firm,  and  is  given  for  no  consideration  received  by  the  firm,  he 
cannot  hold  the  firm.  And  if  a  creditor  of  one  partner  receive 
for  his  separate  debt  a  partnership  security,  this  would  be  a  fraud, 
unless  the  partner  had,  or  was  supposed  by  the  creditor  to  have, 
the  authority  of  the  rest. 

If  he  supposed  the  partner  had  this  authority,  he  cannot  hold 
the  partnership  if  the  partner  had  not  the  authority,  unless  the 
partnership  had  caused  him  to  believe  it.  And  if  the  partner- 
ship security  be  transferred  for  two  considerations,  one  of  which 
is  private  and  fraudulent,  and  the  other  is  joint  and  honest,  the 
partnership  is  bound  for  so  much  of  it  as  is  not  tainted  with 
fraud,  and  only  for  that. 

The  partnership  may  be  liable  for  injury  caused  by  the  crim- 
inal or  wrongful  acts  of  a  partner,  if  these  were  done  in  the 
transaction  of  partnership  business,  and  if  it  was  the  partnership 
which  gave  to  the  wrong-dner  the  means  and  opportunity  of 
doing  the  wrong.  But  an  illegal  contract  will  not  bind  the 
copartners,  for  the  parties  entering  into  it  must  be  presumed  to 
know  its  illegality ;  and  the  law  enforces  no  bargain  that  is  con- 
trary to  law. 

The  acknowledgment  of  one  who  had  been  a  partner,  after 
the  dissolution  of  the  partnership,  may  take  the  debt  out  of 
the  statute  of  limitations  as  to  him,  but  not  so  as  to  restore  the 
liability  of  all  the  partners  without  their  assent. 


REMEDIES  OF  PARTNERS  AGAINST  EACH  OTHER.     239 

SECTION  VI. 

REMEDIES  OF  PARTNERS  AGAINST  EACH  OTHER. 

It  is  seldom  that  a  partner  can  have  a  claim  against  another 
partner,  as  such,  which  can  be  examined  and  adjusted  without 
an  investigation  into  the  accounts  of  the  partnership,  and,  per- 
haps, a  settlement  of  them.  Courts  of  law  have  ordinarily  no 
adequate  means  of  doing  this ;  and  therefore  it  is  generally  true 
that  no  partner  can  sue  a  copartner  at  law  for  any  claim  growing 
out  of  partnership  transactions  and  involving  partnership  inter- 
ests. But  the  objection  to  a  suit  at  law  between  partners  goes 
no  further  than  the  reason  of  it;  and,  therefore,  one  may  sue 
his  copartner  upon  his  agreement  to  do  any  act  which  is  not  so 
far  a  partnership  matter  as  to  involve  the  partnership  accounts. 

If  the  accounts  are  finally  adjusted,  either  partner  may  sue  for 
a  balance  ;  and  so  it  would  be  if  the  accounts  generally  remained 
open,  but  a  specific  part  of  them  were  severed  from  the  rest, 
and  a  balance  found  on  that.  The  rule  is  generally  laid  down, 
that  an  action  cannot  be  sustained  by  a  partner  against  a  part- 
ner for  a  balance,  unless  there  is  an  express  promise  tt)  pay  it. 
But  such  promise  would  be  inferred  in  all  cases  in  which  an 
account  had  been  taken,  and  a  balance  admitted  to  be  due. 

In  general,  any  action  at  law  between  partners  can  be  mair*- 
tained,  only  when  a  rendering  of  judgment  in  this  action  will 
completely  terminate  all  partnership  matters,  so  that  no  furthet 
cause  of  action  can  grow  out  of  them. 

What  a  court  of  law  cannot  do  as  to  actions  between  part, 
ners,  a  court  of  equity  can ;  and,  generally,  a  court  of  equity  has 
a  full  jurisdiction  over  all  disputes  and  claims  between  partners, 
and  may  do  whatever  is  necessary  to  settle  them  in  conformity 
with  justice. 

A  partner  may  sue  his  copartner  for  money  advanced  before 
the  partnership  was  formed,  although  the  loan  was  made  to  pro- 
mote the  partnership.  And  for  work  done  for  the  firm  before  he 
became  a  member  of  it,  he  may  sue  those  who  were  members 
when  he  did  the  work.  And  he  may  sue  a  copartner  on  his  note 
or  bill,  although  the  consideration  was  on  partnership  account; 
but,  in  general,  no  action  at  law  can  be  maintained  for  work  and 
labor  performed,  or  money  expended  for  the  partnership. 


240 


PARTNERSHIP. 


A  partner  who  pays  more  than  his  proportion  of  a  debt  of 
the  partnership  cannot  demand  specific  contribution  from  his 
copartners,  but  must  charge  his  payment  to  the  firm.  The 
reason  is,  that  they  may  have  claims  against  him  on  other 
accounts,  and  they  must  be  all  settled  together  to  strike  the 
balance. 

If  one  of  a  firm  be  a  member  also  of  another  firm,  the  one 
firm  cannot  sue  the  other ;  for  the  same  person  cannot  be  plain- 
tiff and  defendant  of  record.  A  cannot  sue  A  ;  and  therefore 
A,  B,  &  C  cannot  sue  C,  D,  &  E.  In  all  these  cases  an  adequate 
remedy  may  be  found  in  a  court  of  equity. 

If  a  firm  have  a  negotiable  note  which  it  cannot  sue,  because 
one  of  its  own  firm  is  liable  upon  it  and  must  be  made  defendant, 
it  can  indorse  the  note  over,  and  the  indorsee  may  sue  it  in  his 
own  name,  as  we  have  before  stated. 

The  partners  are  entitled  to  perfect  good  faith  from  each 
copartner;  and  a  court  of  equity  will  interfere  to  enforce  this. 
No  partner  will  be  permitted  to  treat  privately,  and  for  his  own 
benefit  alone,  for  a  renewal  of  a  lease,  or  to  transfer  to  himself 
any  benefit  or  interest  properly  belonging  to  the  firm.  And  so 
careful  is  a  court  of  equity  in  this  respect,  that  it  will  not  permit 
a  copartner,  by  his  private  contract  or  arrangement,  to  subject 
himself  to  a  bias  or  interest  which  might  be  injurious  to  the  firm, 
and  conflict  with  his  duty  to  them,  but  will  declare  void  any 
contract  of  this  kind. 

SECTION  VII. 

RIGHTS    OF   THE   FIRM    AGAIXST    THIRD    PARTIES. 

If  a  partner  sells  the  goods  of  the  firm  in  his  own  name,  the 
firm  may  sue  for  the  price.  But  the  rights  of  one  who  deals  in 
good  faith  with  a  copartner,  as  with  him  alone,  are  so  far  regarded, 
that  he  may  set  off  any  claim,  or  make  use  of  any  other  defences 
against  the  suit  of  the  firm,  which  he  could  have  made  had  the 
person  with  whom  he  dealt  sued  alone. 

Therefore,  if  A  honestly  bought  goods  of  a  firm  from  a  part- 
ner whom  he  supposed  to  be  sole  owner  of  them,  and  paid  him 
the  price,  the  firm  cannot  recover  this  price  from  the  buyer, 
although  the  seller  sold  the  goods  fraudulently,  and  cheated  the 


RIGHTS  OF  CREDITORS  TV  RESPECT  TO  FUNDS.     241 

firm  out  of  the  money,  but  must  charge  the  price  to  the  selling 
partner. 

A  guaranty  to  a  copartner,  if  for  the  use  and  benefit  of  th 
firm,  gives  to  them  a  right  of  action. 

A  new  firm,  created  by  some  change  in  the  membership  of 
an  old  firm,  is  entitled  to  the  benefit  of  a  guaranty  given  to  the 
old  firm,  even  if  sealed,  provided  it  shall  distinctly  appear  thrt 
the  instrument  was  intended  to  have  that  effect,  and  extend  ta 
the  new  firm. 

SECTION   VIII. 

RIGHTS  OF  CREDITORS  IN  RESPECT  TO  FUNDS. 

The  property  of  a  partnership  is  bound  to  pay  the  pai  tner- 
ship  debts  ;  and,  therefore,  a  creditor  of  one  copartner  has  nc 
claim  to  the  partnership  funds  until  the  partnership  debts  arc 
paid.  If  there  be  then  a  surplus,  he  may  have  that  copartner's 
interest  therein,  in  payment  of  his  private  debt. 

If  a  private  creditor  attaches  partnership  property,  or  in  any 
way  seeks  to  appropriate  it  to  his  private  debt,  the  partnership 
debts  being  unpaid,  he  cannot  hold  it,  either  at  law  or  in  equity. 
Such  attachment  or  appropriation  is  wholly  subject  to  the  para« 
mount  claims  of  the  partnership  creditors,  and  is  wholly  defeated 
by  the  insolvency  of  the  partnership,  although  the  partnership 
creditors  have  not  brought  any  actions  for  their  debts. 

Hence,  if  a  creditor  of  A  attaches  his  interest  in  the  property 
of  A,  B  8z:  Co.,  and  a  creditor  of  A,  B  &  Co.  attaches  the  same 
property,  the  first  attachment  is  postponed  to  the  second  ;  that 
'\s,  it  has  no  effect  until  the  debt  of  the  second  creditor  is  fully 
satisfied,  and  then  it  is  good  for  the  surplus  of  property.  If, 
however,  one  partner  is  dormant  and  unknown,  the  creditor  of 
the  other  attaching  the  stock  is  not  postponed  to  the  creditor 
who  discovers  the  dormant  partner  and  sues  him  with  the  other 
unless  the  first  attaching  creditor's  claim  has  no  reference  to  th) 
partnership  business,  and  that  of  the  second  attaching  creditor 
has  such  reference. 

The  partnership  creditors  are  restrained  from  appropriating 
the  private  property  of  the  copartners  until  the  claims  of  the^r 
private  creditors  are  satisfied  in  courts  of  equity.     And  some 
16 


242 


PARTiXLRSHIP. 


recant  aujudications  indicate  that  the  rule  will  become  estab- 
lished at  law. 

I  think  the  law  ought  to  be,  and  that  it  is  uow  tending  to 
become,  this.  A  partnership  is  a  kind  of  body  by  itself,  some- 
what like  a  corporation.  It  has  its  own  funds,  and  its  own  debts. 
The  individual  members  may  also  have  each  his  own  funds  and 
his  own  debts. 

The  funds  of  the  partnership  should  first  be  applied  to  the 
debts  of  the  partnership  ;  and,  if  there  be  any  surplus,  the  mem- 
bers have  it,  and  their  creditors  get  it.  So  the  private  funds  of 
each  member  should  first  be  applied  exclusively  to  the  payment 
of  that  person's  private  debts ;  and,  when  they  are  wholly  paid, 
the  surplus  should  go  to  the  partnership  creditors,  because  each 
partner  is  responsible  for  the  partnership  debts.  This  rule  pre- 
vails on  the  continent  of  Europe  very  generally. 

It  is  now  cjuite  certain  that  the  levy  of  a  private  creditor  of 
ijine  copartner  upon  partnership  property  can  give  him  only  what 
that  copartner  has  ;  that  is,  not  a  separate  personal  possession 
of  any  part  or  share  of  the  stock  or  property,  but  an  undivided 
right  or  interest  in  the  whole,  subject  to  the  payment  of  debts 
and  the  settlement  of  accounts ;  including  also  the  right  to 
demand  an  account. 

As  to  how  such  levy  and  sale  of  the  interest  of  one  copartner 
shall  be  made  by  the  sheriff,  there  is  much  diversity  both  of 
practice  and  authority.  Upon  principle,  we  think  the  sheriff 
can  neither  seize,  nor  transfer  by  sale,  either  the  whole  stock 
or  any  specific  portion  of  it.  He  should,  we  think,  without  any 
actual  scicnir,  sell  all  the  interest  of  the  defendant  partner  in 
the  stock  and  property  of  the  partnership  ;  much  in  the  same 
way  in  which  he  would  sell  his  right  to  redeem  a  mortgage,  or 
any  other  incorporeal  right,  subject  to  attachment.  The  pur 
chaser  would  then  have  a  right  to  demand  an  account  and 
Esttlement,  and  a  transfer  to  himself  of  any  balance  or  prop, 
erty  to  which  the  copartner  whom  be  sued  would  have  been 
entitled. 

Where  the  trustee  process,  or  process  of  foreign  attachment, 
is  in  use,  the  better  way  would  be  for  the  sheriff  to  return  a 
general  attachment  of  all  the  interest  of  the  debtor  in  the  part- 


THE  EFFECTS  OF  DISSOLUTIOX.  243 

nership  property,  and  summon  the  other  partners  as  the  trustees 
of  the  debtor. 

It  must  be  stated,  however,  that  the  rules  of  law  in  regard  to 
the  liability  of  partnership  property  for  the  private  debts  of  part- 
ners, and  as  to  how  any  such  liability  may  be  enforced,  are,  at 
present,  somewhat  obscure  and  uncertain. 

SECTIOx\  IX. 

THE   EFFECTS    OF    DISSOLUTION. 

If  the  dissolution  is  caused  by  the  death  of  any  partner,  the 
whole  property  goes  to  the  surviving  partners.  They  hold  it, 
however,  not  as  their  own,  but  only  for  the  purpose  of  settle- 
ment ;  and  therefore  they  have,  in  relation  to  it,  all  the  power 
which  is  necessary  for  that  purpose,  and  no  more.  If  they  carry 
on  the  business  with  the  partnership  funds,  they  do  so  at  their 
own  risk ;  and  the  representatives  of  the  deceased  may  require 
their  share  of  the  capital,  and  choose  between  calling  on  them, 
in  addition,  for  interest,  or  for  a  share  of  the  profits. 

The  survivors  are  not  partners,  but  tenants  in  common 
(joint  owners)  with  the  representatives  of  the  deceased  of  the 
stock  or  property  in  possession  ;  and  have  all  necessary  rights 
to  settle  the  affairs  of  the  concern  and  pay  its  debts.  After  a 
dissolution,  however  caused,  one  who  had  been  a  partner  has  no 
authority  to  make  new  contracts  in  the  name  of  the  firm,  as  to 
make  or  indorse  notes  or  bills  with  the  name  of  the  firm,  even 
if  he  be  expressly  authorized  to  settle  the  affairs  of  the  firm. 
There  must  be  a  distinct  authority  to  sign  for  the  others  who 
were  formerly  partners.  A  parol  authority  will  be  sufficient, 
even  if  the  general  terms  of  the  partnership  had  been  reduced 
to  writing. 

It  is  common,  where  a  partnership  is  dissolved  by  mutual 
consent,  to  provide  that  some  one  of  the  partners  shall  settle  up 
the  affairs  of  the  concern,  collect  and  pay  debts,  and  the  like. 
But  this  will  not  prevent  any  person  from  paying  to  any  partner 
a  debt  due  to  the  firm  ;  and,  if  such  payment  be  made  in  good 
faith,  the  release  or  discharge  of  the  partner  is  effectual. 

If  all  the  debts  were  assigned  and  transferred  to  any  person, 


244 


PARTNERSHIP. 


as  his  property,  any  debtor  who  had  notice  of  this  would  be 
bound  to  make  payment  to  this  person  alone ;  and,  if  he  paid 
anybody  else,  he  would  be  obliged  to  pay  the  money  over  again. 

It  is  frequently  provided,  that  one  partner  shall  take  all  the 
property  and  pay  all  the  debts  ;  but  this  agreement,  though 
valid  between  the  partners,  has  no  effect  upon  the  rights  of 
third  parties  against  the  other  partners  ;  for  they  have  a  valid 
claim  against  all  the  partners,  of  which  they  cannot  be  divested 
without  their  consent. 

This  consent  of  the  creditor  may  be  inferred,  but  not  from 
Blight  evidence  ;  thus,  not  from  receiving  the  single  partner's 
note  as  a  collateral  security,  nor  from  receiving  interest  from 
him  on  the  joint  debt,  nor  from  a  mere  change  in  the  head  of  the 
account,  charging  the  single  partner  and  not  the  firm.  Still,  a* 
the  creditor  certainly  can  assent  to  this  arrangement,  and  accel'^ 
the  indebtedness  of  one  partner  instead  of  that  of  the  firm,  &<, 
it  must  be  equally  clear  that  such  assent  and  intention  will  bin<i 
him,  if  distinctly  proved  by  circumstances. 

SECTION  X. 

LIMITED    PARTNERSHIPS. 

These  have  been  introduced  into  some  of  our  States,  bj> 
statutes,  which  differ  somewhat  in  their  provisions.  Generally, 
they  require,  first,  one  or  more  general  partners,  whose  names, 
shall  be  known  ;  secondly,  special  partners,  who  do  not  appear 
as  members,  nor  possess  the  powers  or  discharge  the  duties  of 
actual  partners ;  thirdly,  the  sum  to  be  contributed  by  the 
special  partners  shall  be  actually  paid  in  ;  lastly,  all  these  arrange- 
ments, with  such  other  information  as  may  be  needed  for  the 
security  of  the  public,  must  be  verified  under  oath,  signatures 
of  all  the  parties,  and  acknowledgment  before  a  magistrate, 
and  correctly  published.  When  these  requisites  are  complied 
with,  the  special  partners  may  lose  all  they  have  put  in,  but 
cannot  be  held  to  any  further  responsibility.  But  any  neglect 
of  them,  or  any  material  mistake  in  regard  to  them,  even  on  the 
part  of  the  printer  of  the  advertisement,  wholly  destroys  their 
effect ;  and  then  the  special  partner  is  liable  for  the  whole  debt, 
precisely  like  a  general  partner. 


ARTICLES  OF  COPARTNERSHIP.  245 

In  a  New  York  case,  the  amount  contributed  by  the  special 
partner  was,  by  mistake  of  the  printer,  stated  at  $5,000,  instead 
of  $2,000,  and  it  was  held  that  the  associates  were  liable  as  gen 
eral  partners,  although  the  plaintiff  did  not  show  that  he  wa 
actually  misled  by  the  error.     In  another  New  York  case,  it  was 
held  that  an  assignment  of  the  partnership  property,  providing 
for  the  payment  of  a  debt  due  to  the  special  partner,  ratably 
with  the  other  creditors  of  the  firm,  or  before  all  the  other  cred 
itors  are  satisfied  in  full  for  their  debts,  is  void  as  against  the 
creditors  ;  but  it  would  be  valid  as  against  the  assignor  and  those 
creditors  who  think  proper  to  aflirm  it. 

(83.) 
Articles  of  Copartnership  between  two  Tradesmen. 

Articles  of  Agreement,  Had,  made,  concluded,  and  agreed  upon,  this 
day  of  A.D.  between 

of  trader,  and  of  trader. 

First  of  all,  the  said  and  have 

agreed,  and  by  these  presents  do  agree,  to  become  copartners  together  in  the 
art  or  trade  of  and  all  things  thereto  belonging,  and  also,  in 

buying,  selling,  vending,  and  retailing  all  sorts  of  wares,  goods,  and  commo- 
dities belonging  to  the  said  trade  of  which  said  copartnership, 
it  is  agreed,  shall  continue  from  for  and  during,  and  unto 
the  full  end  and  term  of  years,  from  thence  next  ensuing,  and 
fully  to  be  complete  and  ended.     And  to  that  end  and  purpose  he  the  said 

hath  the  day  of  date  of  these  presents,  delivered  in  as  stock,  the 
.-um  of  and  he  the  said  the  sum  of 

10  be  used,  laid  out,  and  employed,  in  common  trade  between  them,  for  the 
management  of  the  said  trade  of  to  their  utmost  benefit 

and  advantage.  And  it  is  hereby  agreed  between  the  said  parties,  and  the 
said  copartners,  each  for  himself  respectively,  and  for  his  own  particular 
part,  and  for  his  executors  and  administrators,  that  each  doth  covenant, 
promise,  and  agree,  to  and  with  the  other  of  them,  his  executors  and  admin- 
istrators, by  these  presents,  in  manner  and  form  following  (that  is  to  say) 
that  they  the  said  copartners  shall  not  nor  will,  at  any  time  hereafter,  use, 
exercise,  or  follow  the  trade  of  aforesaid,  or  any  other  trade 

whatsoever  during  the  said  term,  to  their  private  benefit  and  advantage  ;  but 
shall  and  will,. from  time  to  time,  and  at  all  times,  during  the  said  term  (if 
they  shall  so  long  live),  do  their  and  each  of  their  best  and  utmost  endeavors, 
in  and  by  all  means  possible,  to  the  utmost  of  their  skill  and  power,  for 
their  joint  interest,  profit,  benefit,  and  advantage,  and  truly  employ,  buv, 
sell  and  merchandise,  with  the  stock  aforesaid,  and  the  increase  thereof  in 
the  trade  of  aforesaid,  without  any  sinister  intentions  or 

fraudulent  endeavors  whatsoever.     And  also  that  they  ihe  said  copartners 


246 


PARTNERSHIP. 


shall  and  will,  from  time  to  time,  and  at  all  times  hereafter,  during  the  said 
term,  pay,  bear,  and  discharge,  equally  between  them,  the  rent  of  the  shop, 
which  they  the  said  copartners  shall  rent  or  hire,  for  the  joint  exercising  cr 
managing  of  the  trade  aforesaid.  And  that  all  such  gain,  profit,  and  increase, 
as  shall  come,  grow,  or  arise,  for  or  by  reason  of  the  said  trade,  or  joint 
business  as  aforesaid,  shall  be  from  time  to  time,  during  the  said  term, 
equally  and  proportionably  divided  between  them  the  said  copartners,  share 
and  share  alike.  And  also  that  all  such  losses  as  shall  happen  in  the  said 
joint  trade,  by  bad  debts,  ill  commodities,  or  otherwise  without  fraud  cr 
covin,  shall  be  paid  and  borne  equally  and  proportionably  between  them. 
And  further,  it  is  agreed  by  and  between  the  said  copartners,  that  there  shall 
be  had  and  kept  from  time  to  time,  and  at  all  times  during  the  said  term  and 
joint  business  and  copartnership  together  as  aforesaid,  perfect,  just,  and 
true  books  of  account,  wherein  each  of  the  said  copartners  shall  duly  enter 
and  set  down,  as  well  all  money  by  him  received,  paid,  expended  and  laid  out, 
in  and  about  the  management  of  the  said  trade,  as  also  all  wares,  goods, 
commodities,  and  merchandises,  by  them  or  either  of  them  bought  and  sold 
by  reason  or  means  or  upon  account  cf  the  s  lid  copartnership,  and  all  other 
matters  and  things  whatsoever,  to  the  said  joint  trade,  and  the  managemen- 
thereof,  in  anywise  belonging  or  appertaining,  which  said  books  sliall  be 
used  in  common  between  the  said  copartners,  so  that  either  of  them  may 
have  free  access  thereto  without  any  interruiDtion  of  the  other.  And  also 
that  they  the  said  copartners,  once  in  three  months,  or  oftner  if  need  shall 
require,  upon  the  reasonable  request  of  one  of  them,  shall  make,  yield,  and 
render,  each  to  the  other,  or  to  the  executors  or  administrators  of  the  other, 
a  true,  just,  and  perfect  account  of  all  profits  and  increase,  by  them  or  either 
of  them  made,  and  of  all  losses  by  them  or  either  of  them  sustained,  and 
also  of  all  payments,  receipts,  and  disbursements  whatsoever,  by  them  or 
either  of  them  made  or  received,  and  of  all  other  things  by  them  or  either 
of  them  acted,  done,  or  suffered  in  the  said  copartnership  and  joint  business 
as  aforesaid  ;  and  the  same  account  being  so  made,  shall  and  will  cleai; 
adjust,  pay,  and  deliver,  each  unto  the  other,  at  the  time  of  making  such 
account,  their  equal  shares  of  the  profits  so  made  as  aforesaid  ;  and  at  the  end 
of  the  said  term  of  or  other  sooner  determination  of 

these  presents  (be  it  by  the  death  of  one  of  the  said  partners  or  otherwise), 
they  the  said  copartners,  each  to  the  other,  or  in  case  of  the  death  of  either 
of  them,  the  surviving  party  to  the  executors  or  administrators  of  the  party 
deceased,  shall  and  will  make  a  true,  just,  and  final  account  of. all  things  as 
aforesaid,  and  divide  the  profits  aforesaid,  and  in  all  things  well  and  truly 
adjust  the  same,  and  that  also  upon  the  making  of  such  final  account,  all 
and  every  the  stock  and  stocks,  as  well  as  the  gains  and  increase  thereof, 
which  shall  appear  to  be  remaining,  whether  consisting  of  money,  wares, 
debts,  shall  be  equally  parted  and  divided  between 

them  the  said  copartners,  their  executors  or  administrators,  share  and  share 
ahke. 

In  "Witness  "Whereof,  &c. 

{Signatures^ 


ARTICLES  OF  COPARTNERSHIP.  247 

Various   Covenants    and   Clauses   which   may  be  introduced   in 

Articles  of  Copartnership  according  to  circumstances. 

A^ot  to  trust  any  one  ivhont  the  Copartner  shall  forbid. 

And  that  neither  of  the  said  parties  shall  sell  or  credit  any  goods  or 

merchandise  belonging  to  the  said  joint  trade,  to  any  person  or  persons, 

after  notice  in  writing  from  the  other  of  the  said  parties,  that  such  person  or 

persons  are  not  to  be  credited  or  trusted. 

dVot  to  release  any  Debt  luithont  Consent,  S^e. 

And  that  neither  of  the  said  parties  shall,  without  the  consent  of  tl.e 

other,  release  or  compound  any  debt  or  demand,  due  or  coming  to  them  on 

account  of  their  said  copartnership,  except  for  so  much  as  shall  actually  be 

received,  and  brought  into  the  stock  or  cash  account  of  the  said  partnership, 

AW  to  be  bonnd,  or  indorse  Bills,  ^'c,  for  any  one  ivithout  Consent,  Qr^c. 
And  that  neither  of  the  said  parties  shall,  during  this  copartnership, 
without  the  consent  of  the  other,  enter  into  any  deed,  covenant,  bond,  ot 
judgment,  or  become  bound  as  bail  or  surety,  or  give  any  note,  or  accept  or 
indorse  any  bill  of  exchange  for  himself  and  partner,  without  the  consent  o£ 
the  other  first  had  and  obtained,  with  or  for  any  person  whatsoever. 

A^either  Party  to  assign  his  Interest,  &^c. 
And  it  is  agreed  between  the  said  parties,  that  neither  of  the  said  parties 
shall,  without  the  consent  of  the  other,  obtained  in  writing,  sell  or  assign  his 
share  or  interest  in  the  said  joint  trade,  to  any  person  or  persons  whatso* 
ever. 

Principal  Clerk  to  be  Recei:  er  of  Moneys,  Qr'e. 

That  the  principal  clerk  for  the  time  being  shall  be  the  general  received 
of  all  the  money  belonging  to  the  said  joint  trade,  and  shall  thereout  pay  all 
demands,  ordered  by  the  said  parties,  and  shall  from  time  to  time  pay  thi; 
surplus  cash  to  such  banker  as  the  said  partners  shall  nominate. 

Parties  to  draiv  quarterly^  &^c. 
That  it  shall  be  lawful  for  each   of  them  to  take  out  of  the  cash  of  the 
joint  stock  the  sum  of  quarterly,  to  his  o.wn  use,  the  same 

to  be  charged  on  account,  and  neither  of  them  shall  take  any  further  sum 
for  his  own  separate  use,  without  the  consent  of  the  other  in  writing;  and 
any  such  further  sum,  taken  with  such  consent,  shall  draw  interest  after  the 
rate  of  per  cent.,  and  shall  be  payable  together  with  the  interest 

due,  within  days  after  notice  in  writing  given  by  the  other 

of  the  said  parties. 

(84.) 

Shorter  Form  of  Articles  of  Copartnership. 
Articles  of  Agreement,  Made  tlie  day 

of  one  thousand  eiirht  hun:^red  and  between 


248 


PARTNERSHIP. 


{the  natnes  and  residences  of  the  two  parties)  as  follows  :     The  said 

parties  above  named  have  agreed  to  become  copartners  in  business,  and  by 
these  presents  do  agree  to  be  copartners  together  under  the  name  or  firm  of 
in  the  business  of  and  in  the  buying,  selling,  and 

vending  all  sorts  of  goods,  wares,  and  merchandise  to  the  said  business 
belonging,  and  to  occupy  the  their  copartnership  to 

commence  on  the  day  of  and  to  continue 

and  to  that  end  and  purpose  the  said  {here  state  the  contribtitions  of  each  of 
the  parties) 

to  be  used  and  employed  in  common  between  them  for  the  support  and 
management  of  the  said  business,  to  their  mutual  benefit  and  advantage. 
And  it  is  agreed  by  and  between  the  parties  to  these  presents,  that  at  all 
times  during  the  continuance  of  their  copartnership,  they  and  each  of  them 
will  give  their  attendance,  and  do  their  and  each  of  their  best  endeavors, 
and  to  the  utmost  of  their  skill  and  power  exert  themselves  for  their  joint 
interest,  profit,  benefit,  and  advantage,  and  truly  employ,  buy,  sell,  and 
merchandise  with  their  joint  stock,  and  the  increase  thereof,  in  the  business 
aforesaid.  And  also  that  they  shall  and  will  at  all  times  during  the  said 
copartnership  bear,  pay,  and  discharge  equally  between  them,  all  rents  and 
ether  expenses  that  maybe  required  for  the  support  and  management  of  the 
said  business ;  and  that  all  gains,  profit,  and  increase  that  shall  come,  grow, 
<;ir  arise  from  or  by  means  of  their  said  business,  shall  be  divided  between 
them  {state  whether  equally,  or  in  what  proportions)  and 

all  loss  that  shall  happen  to  their  said  joint  business,  by  ill  commodities,  bad 
»:»ebts,  or  otherwise,  shall  be  borne  and  paid  between  them  in  the  like  pro- 
portion. 

And  it  is  agreed  by  and  between  the  said  parties,  that  there  shall  be  had 
and  kept  at  all  times  during  the  continuance  of  their  copartnership,  perfect, 
just,  and  true  books  of  account,  wherein  each  of  the  said  copartners  shall 
-enter  and  set  down,  as  well  all  money  by  them  or  either  of  them  received, 
paid,  laid  out,  and  expended  in  and  about  the  said  business,  as  also  all  goods, 
wares,  commodities,  and  merchandise,  by  them  or  either  of  them,  bought  or 
sold  by  reason  or  on  account  of  the  said  business,  and  all  other  matters  and 
things  whatsoever  to  the  said  business  and  the  management  tliereof  in  any 
wise  belonging ;  which  said  books  shall  be  used  in  common  between  the 
said  copartners,  so  that  either  of  them  may  have  access  thereto,  without  any 
interruption  or  hindrance  of  the  other.  And  also  the  said  copartners, 
on^e  in 

or  oftener  if  necessary,  shall  make,  yield,  and  render,  each  to  the  other,  a 
true,  just,  and  perfect  inventory  and  account  of  all  profits  and  increase  by 
them,  or  either  of  them,  made,  and  of  all  losses  by  them,  or  either  of  them, 
sustained;  and  also  all  payments,  receipts,  disbursements,  and  all  other 
things  by  them  made,  received,  disbursed,  acted,  done,  or  suffered  in  this 
said  copartnership  and  business,  and  the  same  account  so  made  shall  and 
will  clear,  adjust,  pay,  and  deliver,  each  to  the  other,  at  the  time,  their  just 
share  of  the  profits  so  made  as  aforesaid. 


ARTICLES  OF  COPARTNERSHIP.  249 

And  the  said  parties  hereby  mutually  covenant  and  agree  to  and  with 
each  other,  that,  during  the  continuance  of  the  said  copartnership,  neither 
of  them  sliall  nor  will  indorse  any  note,  or  otherwise  become  surety  for  any 
person  or  persons  whomsoever,  without  the  consent  of  the  other  of  the  said 
copartners.  And  at  the  end,  or  other  sooner  determination  of  their  copart- 
nership, the  said  copartners,  each  to  the  other,  shall  and  will  make  a  true, 
just,  and  final  account  of  all  things  relating  to  their  said  business,  and  in  all 
things  truly  adjust  the  same  ;  and  all  and  every  the  stock  and  stocks,  as 
well  as  the  gains  and  increase  thereof,  which  shall  appear  to  be  remaining, 
either  in  money,  goods,  wares,  fixtures^  debts,  or  otherwise,  shall  be  divided 
between  them,  in  the  proportions  aforesaid. 

In  Witness  Whereof, 

{Signatures^ 
(85.) 

Certificate  of  a  Limited  Partnership  with  Acknowledgment, 

and  Oath. 
This  is  to  Certify,  That  the  undersigned    have,  pursuant  to  the  pro- 
visions of  the  Statutes  of  the  State  of  formed  a  limited  partnership, 
under  the  name  or  firm  of                                     that  the  general  nature  of  the 
business  to  be  transacted  is                 {describe  the  business)  and  that 
the  general  partner    and 
is  the  special  partner  and  th  it  the  said  (t/ie  special  part7ie7-) 
hath  contributed  the  sum  of  dollars,  as  capital 
towards  the  common  stock,  and  that  the  said  partnership  is  to  commence 
on  the                         day  of                         and  is  to  terminate  on  the 
day  of                         18 

Dated  this  day  of  one  thousand  eight  hundred 

and 

{Sigfiatures.) 

County  of      '  ss.     On  the  day  of 

one  thousand  eight  hundred  and  before  me  came 

to  be  the  individuals  des'^ribed  in,  and  who  executed  the  above  certificate, 
and  they  severally  acknowledged  that  they  executed  the  same. 

County  of  ss. 

the  gentx2\  partner  named  in  the  above  certificate,  being  duly  sworn, 
doth  depose  and  say,  that  the  sum  specified  in  the  said  certificate  to  have 
been  contributed  by  the  special  partner  to  the  common  stock  has  been 
actually  and  in  good  faith  paid  in  cash. 

Sivorti  tJiis  day  of  18  before  me, 

In  some  of  the  States,  the  oath  should  be  made  by  the 
general  partner  ;  and  it  would  always  be  safe  for  all  the  partners, 
general  and  special,  to  take  the  oath,  and  be  included  in  tht> 
certificate. 


250 


ARBITRATION'. 

CHAPTER  XIX. 

ARBITRATION. 


SECTION  I. 

OF  THE  SUBMISSION  AND  AWARD. 


The  law  favors  arbitration  in  many  respects  as  a  peaceable 
and  inexpensive  mode  of  settling  difficulties.  Parties  may 
agree  to  refer  a  question  by  an  oral  agreement,  or  by  a  written 
agreement.  The  form  is  not  essential.  But  it  is  always  best 
to  reduce  the  agreement  to  writing,  and  to  express  it  carefully 
But  parties  may,  in  many  of  our  States,  go  before  a  magistrate 
and  agree  to  refer  in  the  manner  pointed  out  by  the  statute. 
In  all  of  them  a  case  may  be  taken  out  of  court  and  submitted 
to  referees  under  an  order  of  court. 

The  first  essential  of  an  award,  without  wdiich  it  has  no 
force  whatever,  is,  that  it  be  conformable  to  the  terms  of  the 
submission.  The  authority  given  to  the  arbitrators  should  not 
be  exceeded  ;  and  the  precise  question  submitted  to  them,  and 
neither  more  nor  less,  should  be  answered.  Neither  can  the 
aw^ard  affect  strangers  (or  those  who  are  not  parties  to  it)  ;  and, 
if  one  part  of  it  is  that  a  stranger  shall  do  some  act,  it  is  not 
only  of  no  force  as  to  the  stranger,  but  of  no  force  as  to  the 
parties  if  this  unauthorized  part  of  the  award  cannot  be  taken 
away  without  affecting  the  rest  of  the  award. 

Nor  can  it  require  that  one  of  the  parties  should  make  a 
payment,  or  do  any  similar  act,  to  a  stranger.  But  if  the 
stranger  is  mentioned  in  an  award  only  as  agent  of  one  of  the 
parties,  which  he  actually  is  or  as  trustee,  or  as  in  any  way 
paying  for,  or  receiving  for,  one  of  the  parties,  this  does  not 
invalidate  the  award.  And  in  favor  of  awards,  it  has  been  said 
that  this  wall  be  supposed,  where  the  contrary  is  not  indicated. 

If  the  award  embrace  matters  not  included  in  the  submis- 
sion, it   is  fatal.     If,  however,  the  portion   of  the  award  which 


SUBMISSION  AND  A  WARD.  25 1 

exceeds  the  submission  can  be  separated  from  the  rest  without 
affecting  the  merits  of  the  award,  it  may  be  rejected,  and  the 
rest  will  stand  ;  otherwise  the  whole  is  void.  If  the  submis- 
sion specify  the  particulars  to  which  it  refers,  or  if,  after 
general  words,  it  make  specific  exceptions,  its  words  must  be 
strictly  followed. 

If  these  words  are  very  general,  they  will  be  construed 
liberally,  but  yet  without  extending  them  beyond  their  fair 
meaning.  On  the  other  hand,  all  questions  submitted  must  be 
decided,  unless  the  submission  provides  otherwise ;  and  either 
party  may  object  to  an  award,  that  it  omits  the  decision  of 
some  question  submitted  ;  but  the  objection  is  invalid  if  it  be 
shown  that  the  party  objecting  himself  withheld  that  question 
from  the  arbitrators.  Nor  is  it  necessary  that  the  award  embrace 
all  the  topics  which  might  be  considered  within  the  terms  of  » 
general  submission.  It  is  enough  if  it  pass  upon  those  ques- 
tions brought  before  the  arbitrators,  and  they  are  so  far  dis> 
tinct  and  independent  that  the  omission  of  others  leaves  no 
uncertainty  in  the  award.  If  the  award  does  not  embrace  all 
of  the  matters  within  the  submission  which  were  brought  to 
the  notice  of  the  arbitrators,  it  is  altogether  void. 

In  the  next  place,  an  award  must  be  certain  ;  that  is,  it  must 
be  so  expressed  that  no  reasonable  doubt  can  be  entertained  as 
to  the  meaning  of  the  arbitrators,  the  effect  of  the  award,  or 
the  rights  and  duties  of  the  parties  under  it.  For  the  very 
purpose  of  the  submission,  and  the  end  for  which  the  law 
favors  arbitration,  is  the  final  settlement  of  all  questions  and 
disputes  ;  and  this  is  inconsistent  with  uncertainty. 

In  the  next  place,  the  award  must  ho.  possible ;  for  an  award 
requiring  that  to  be  done  which  cannot  be  done  is  senseless  and 
useless.  But  the  impossibility  which  vitiates  an  award  is  one 
which  belongs  to  the  nature  of  the  thing,  and  not  to  the  acci 
dental  disability  of  the  party  at  the  time.  Thus,  if  he  te 
ordered  to  pay  money  on  a  day  that  is  past,  this  is  void  ;  so  if 
he  be  required  to  give  up  a  deed  which  he  neither  has  nor  may 
expect  to  have  ;  but  if  he  be  directed  to  pay  money,  the  award 
is  good,  although  he  has  no  money,  for  it  creates  a  valid  debt 
against  him.     Nor  can  a  party  avoid  an  award  on  the  ground  of 


2^2  ARBITRATION. 

an  impossibility  created  by  himself,  after  the  award,  or  indeed 
beforehand,  if  he  created  it  for  the  purpose  of  evading  an 
expected  award. 

This  impossibility  may  be  actual,  or  it  may  be  that  created  by 
law ;  for  an  award  which  requires  that  a  party  should  do  what 
the  law  forbids  him  to  do  is  void,  either  in  the  whole,  or  else  for 
so  much  as  is  thus  against  the  law,  if  that  illegal  part  can  be 
severed  from  the  rest. 

An  award  must  be  reasonable ;  if  it  be  of  things  in  them- 
selves of  no  value  or  advantage  to  the  parties,  or  out  of  all 
proportion  to  the  justice  and  requirements  of  the  case,  or  if  it 
undertake  to  determine  for  the  parties  what  they  should  deter- 
mine for  themselves,  as  that  the  parties  should  intermarry,  it  is 
\oid. 

Lastly,  the  award  must  h^  final  and  conclusive.  This  neces- 
sity springs  also  from  the  very  purpose  for  which  the  law  favors 
arbitration,  namely,  the  settlement  and  closing  of  disputes.  It 
is  not  a  valid  objection  to  an  award,  that  it  is  upon  a  condition,  if 
the  condition  be  clear  and  certain,  consistent  with  the  rest  of 
the  award,  in  itself  reasonable,  and  such  that  there  could  be  no 
j:loubt  whether  it  were  performed  or  not,  or  what  were  the 
rights  or  obligations  dependent  upon  it. 

An  award  may  be  open  to  any  or  all  of  these  objections 
in  part,  without  being  necessarily  void  in  the  whole.  So  much 
of  it  as  is  thus  faulty  is  void ;  but  if  this  can  be  severed  dis- 
tinctly from  the  residue,  leaving  a  substantial,  definite,  and 
unobjectionable  award  behind,  this  may  be  done,  and  the 
award  then  will  take  effect.  It  is  therefore  void  in  the  whole 
because  bad  in  part,  only  where  this  part  cannot  be  severed  from 
the  residue ;  or  where,  if  it  be  severed  and  amended,  leaving 
the  residue  in  force,  one  of  the  parties  will  be  held  to  an 
obligation  imposed  upon  him,  but  deprived  of  the  advantage  or 
recompense  which  it  was  intended  that  he  should  have.  Gen- 
erally, in  the  construction  of  awards,  they  are  favored  and 
enforced,  wherever  this  can  properly  be  done. 

If  the  submission  be  in  the  most  general  terms,  and  the 
award  equally  so,  covering  "  all  demands  and  questions  "  between 
the  parties,  either  party  may  still  show  that  a  particular  demand 


SU'BMISSIOA'  A  ND  A  WA  RD.  253 

either  did  not  exist,  or  was  not  known  to  exist,  when  the  sub- 
mission was  entered  into,  or  that  it  was  not  brought  before  the 
notice  of  the  arbitrators,  or  considered  by  them  ;  and  then  the 
award  will  not  be  permitted  to  affect  this  demand.    , 

If,  by  an  award,  money  is  to  be  paid  in  satisfaction  of  a  debt, 
this  implies  an  award  of  a  release  on  the  other  side,  and  makes 
this  release  a  condition  to  the  payment. 

There  is  no  especial  form  of  an  award  necessary  in  this  coun 
try.  If  the  submission  requires  that  it  should  be  sealed,  it  must 
be  so.  And  if  the  submission  was  made  under  a  statute,  or 
under  a  rule  of  court,  the  requirements  of  the  statute  or  the  rule 
should  be  followed.  But  even  here  mere  formal  inaccuracies 
would  seldom  be  permitted  to  vitiate  the    award. 

If  the  submission  contains  other  directions  or  conditions,  2S 
that  it  should  be  delivered  to  the  parties  in  writing,  or  to  each 
of  the  parties,  such  directions  must  be  substantially  followed 
Thus,  in  the  latter  case,  it  has  been  held  that  it  is  not  enough 
that  a  copy  be  delivered  to  one  of  the  parties  on  each  side,  but 
each  individual  party  must  have  one. 

It  may  happen,  where  an  award  is  offered  in  defence,  or  as 
the  ground  of  an  action,  that  it  is  open  to  no  objection  whatever 
for  anything  which  it  contains  or  which  it  omits  ;  and  yet  it  may 
be  set  aside  for  impropriety  or  irregularity  in  the  conduct  of  the 
arbitrators,  or  in  the  proceedings  before  them.  Awards  are  thus 
set  aside  if  "procured  by  corruption  or  undue  means."  This 
rule  rests,  indeed,  on  the  common  principle,  that  fraud  vitiates 
and  avoids  every  transaction. 

So,  too,  it  may  well  be  set  aside  if  it  be  apparent  on  its  face 
that  the  arbitrator  has  made  a  material  mistake  of  fact  or  of  law. 
It  must,  however,  be  rather  a  strong  case  in  which  the  court 
would  receive  evidence  of  a  mere  mistake,  either  in  fact,  or  in 
law,  which  did  not  appear  in  the  award,  and  was  not  supposed 
to  spring  from  or  indicate  corruption. 

Another  instance  of  irregularity  is  the  omission  to  examine 
witnesses  ;  or  an  examination  of  them  when  the  parties  were  not 
present,  and  their  absence  was  for  good  cause  ;  or  a  concealment 
by  either  of  the  parties  of  material  circumstances  ;  for  this  would 
be  fraud.     So  if  the  arbitrators,  in  case  of  disagreement,  were 


254 


ARBITRATION. 


authorized  to  choose  an  umpire,  but  drew  lots  which  of  them 
should  choose  him.  But  it  has  been  held  enough  that  each 
arbitrator  named  an  umpire,  and  lots  were  drawn  to  decide  which 
of  these  two  should  be  taken,  because  it  might  be  considered 
that  both  of  these  men  were  agreed  upon.  And  if  an  umpire 
be  appointed  by  lot,  or  otherwise  irregularly,  if  the  parties  agree 
to  the  appointment,  and  confirm  it  expressly,  or  impliedly  by 
attending  before  him,  with  a  full  knowledge  of  the  manner  of 
the  appointment,  this  covers  the  irregularity. 

SECTION  II. 

THE   REVOCATION    OF    A    SUBMISSION   TO   ARBITRATORS. 

It  is  an  ancient  and  well  established  rule,  that  either  party 
may  revoke  his  submission  at  any  time  before  the  award  is  made  ; 
and  by  this  revocation  render  the  submission  wholly  ineffectual, 
and  of  course  take  from  the  arbitrators  all  pov/er  of  making  a 
binding  award.  And,  generally,  this  power  exists  until  the 
award  is  made. 

In  this  country,  our  courts  have  always  excepted  from  this 
rule  submissions  made  by  order  or  rule  of  court ;  for  a  kind  of 
jurisdiction  is  held  to  attach  to  the  arbitrators,  and  the  submis- 
sion is  quite  irrevocable,  except  for  such  cases  as  make  it  nec- 
essarily inoperative. 

There  is  a  strong  reason  why  a  submission  by  order  of  court, 
or  before  a  magistrate,  should  be  preferred  where  it  can  be  had, 
from  the  fact  above  stated,  that  the  law  permits  any  party  who 
finds  an  award  is  going  against  him  to  revoke  his  submission  or 
reference  when  he  will,  before  the  award  is  made  ;  provided  the 
award  was  only  by  agreement  out  of  court,  or  not  before  a  mag- 
istrate. In  some  of  our  States,  the  statutes  authorizing  and 
regulating  arbitration  provide  for  the  revocation  of  the  submis- 
sion. 

It  should  be  stated,  however,  that,  as  an  agreement  to  sub- 
mit is  a  valid  contract,  the  promise  of  each  party  being  the  con- 
sideration for  the  promise  of  the  other,  a  revocation  of  the  agree- 
ment or  of  the  submission  is  a  breach  of  the  contract,  and  the 
other  party  has  his  damages.     And  damages  w^ould  generally 


REVOCA  no  A'  OF  SUBMISSIO.V  TO  ARBITRATORS.     2;; 


53 


include  all  the  expenses  the  plaintiff  has  incurred  about  the 
submission,  and  all  that  he  has  lost  by  the  revocation,  in  any 
way. 

If  either  party  exercise  this  power  of  revocation,  he  must 
give  notice  in  some  way,  directly  or  indirectly,  to  the  other 
party  ;  and  until  such  notice,  the  revocation  is  inoperative. 

Bankruptcy  or  insolvency  of  either  or  both  parties  does  not 
necessarily  operate  as  a  revocation,  unless  the  terms  of  the 
agreement  to  refer,  or  the  provisions  of  the  insolvent  law, 
required  it.  But  the  assignees  acquire  whatever  power  of 
revocation  the  bankrupt  or  insolvent  possessed,  and,  generally, 
at  least,  no  further  power. 

The  death  of  either  party  before  the  award  is  made  vacates 
the  submission,  if  made  out  of  court,  unless  that  provides  in 
terms  for  the  continuance  and  procedure  of  the  arbitration,  if 
such  an  event  occur.  But  a  submission  under  a  rule  of  court  is 
not  revoked  or  annulled  even  by  the  death  of  a  party.  So  the 
death  or  refusal  or  inability  of  an  arbitrator  to  act  would  annul  a 
submission  out  of  court,  unless  provided  for  in  the  agreement ; 
but  not  one  under  a  rule  of  court,  unless  for  especial  reasons, 
satisfactory  to  the  court,  which  would  make  an  appointment  of 
a  substitute,  if  it  saw  fit  to  continue  the  reference. 

It  may  be  well  to  add,  that,  after  an  award  is  fully  made, 
neither  of  the  parties  without  the  consent  of  the  other,  nor 
either  nor  all  of  the  arbitrators  without  the  consent  of  all  the 
parties,  have  any  further  control  over  it. 

If  the  submission  provides  for  any  method  of  delivering  the 
award,  this  should  be  followed.  If  not,  it  is  common  for  the 
referees  to  deliver  the  award  to  the  prevailing  party  or  his  attor- 
ney, o^n  payment  by  him  of  the  fees  of  arbitration.  Then  the 
prevailing  party  looks  to  the  losing  party,  for  the  whole,  or  a 
part,  or  none  of  the  costs,  as  the  avvard  may  determine. 

The  award  should  be  sealed,  and  addressed  to  all  the  parties ; 
and  it  should  not  be  opened  except  in  presence  of  all  the  parties, 
or  of  their  attorneys,  or  with  the  consent  of  those  absent  indorsed 
on  the  award.  If  the  submission  is  under  a  rule  of  court,  it 
should  be  returned  to  court  by  the  arbitrators,  or  the  counsel 
receiving  it,  sealed,  and  opened  only  in  court,  or  before  the 
clerk,  or  with  the  written  consent  of  parties. 


256  A  RBITRA  TION. 

The  submission,  or  agreement  to  refer,  may  be  made  by 
exchange  of  Bonds,  each  party  executing  and  delivering  a  Bond 
to  the  other  party. 

This  would  be  a  formal  proceeding.  But,  as  has  been  already 
said,  no  especial  form  is  necessary  ;  and  often  a  very  simple  one, 
like  that  below,  would  suffice. 

(86.) 
Simple  Agreement  to  Refer. 

Know  all  Men,   That  we,  of 

and  of  do  hereby  promise  and 

ao^ree,  to  and  with  each  other,  to  submit,  and  do  hereby  submit,  all  questions 
and  claims  between  us  (or  any  specific  qjiestion  or  claim,  describing  it)  to  the 
arbitrament  and  determination  of  (Jiere  name  the  arbitrators)  whose  decision 
and  award  shall  be  final,  binding,  and  conclusive  on  us  ;  {add  if  there  are 
more  arbitrators  thati  one,  ajid  it  is  intended  that  they  may  choose  an  umpire) 
and,  in  case  of  disagreement  between  the  said  arbitrators,  they  may  choose 
an  umpire,  whose  award  shall  be  final  and  conclusive  ;  [or  add,  if  there  be 
more  than  two  arbitrators)  and,  in  case  of  disagreement,  the  decision  and 
award  of  a  majority  of  said  arbitrators  shall  be  final  and  conclusive. 

la  Witness  Wliereof,  &c. 

{Signatures') 

(8'!'.) 

Arbitration  Bond.    One  or  more  Arbitrators. 

Know  all  Men  by  these  Presents,  That  I,  {one  of  the  parties') 

am  held  and  firmly  bound  unto  {the  other  party)  in  the  suin 

cf  dollars,  lawful  money  of  the  United  States  of  America, 

to  be  paid  to  the  said  {the  other  party)  executors,  administratorr.. 

or  assigns;  for  which  payment,  well  and  truly  to  be  made,  I  hereby  bind 
myself,  my  heirs,  executors,  and  administrators,  firmly  by  these  presents. 

Sealed  with  my  seal.     Dated  the  day  of  one 

thousand  eight  hundred  and 

Tlia  Condition  of  the  above  Obligation  is  such,  That  if  the  above 
bounden  shall  well  and  truly  submit  to  the 

decision  of  {the  referee)  named,  selected,  and  chosetx 

arbitrator    as  well  by  and  on  the  part  and  behalf  of,  the  said 

as  of  the  said  between  whom  a  controversy 

exists,  to  hear  all  the  proofs  and  allegations  of  the  parties  of  and  concerning 

{Jure  set  forth  the  claims  or  questions  referred) 

and  all  matters  relating  thereto,  and  that  the 

award  of  the  said  arbitrator    be  made  in  writing,  subscribed  by  him  (or  them^ 

and  attested  by  a  subscribing  witness,  ready  to  be  delivered  to  the  saic.' 

parties  on  or  before  the  day  of  next 


.1  PRIVATE  CARRIER.  257 

But  before  proceeding  to  take  any  testimony  therein,  the  arbitrator  shall  be 
sworn,  "faithfully  and  fairly  to  hear  and  examine  the  matters  in  controversy 
between  the  parties  to  these  presents,  and  to  make  a  just  award  according  to 
the  best  of  his  (or  their)  understanding."  And  the  said  parties  to  these 
presents  do  hereby  agree,  that  judgment  in  the  case  (in  question) 

shall  be  rendered  upon  the  award  which  may  be  made  pursuant 
to  this  submission,  to  the  end  that  all  matters  in  controversy  in  that  behalf, 
between  them,  shall  be  finally  concluded.  Then  the  above  obligation  to  be 
void,  otherwise  to  remain  in  full  force  and  virtue. 

{Signature.)     {Seal.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

[To  make  the  contract  complete,  the  other  party  should  execute  and 
deliver  a  counterpart  of  this  Bond.] 

(88.) 
Award  of  Arbitrators. 

To  all  to  whom  these  Presents  shall  come,  We  {names  of  the  arbr 
trators),  to  whom  was  submitted  as  arbitrators  the  matters  in  controversy 
existing  between  as  by  the  condition  of  their  respective 

bonds  of  submission,  executed  by  the  said  parties  respectively,  each  untir 
the  other,  and  bearing  date  the  day  of  one  thousansi 

eight  hundred  and  more  fully  appears. 

Now,  therefore,  know  ye,  That  we  the  arbitratorr 

mentioned  in  the  said  bonds  having  been  first  duly  sworn  according  to  law, 
and  having  heard  the  proofs  and  allegations  of  the  parties,  and  examined  th*( 
matters  in  controversy  by  them  submitted,  do  make  this  award  in  writing, 
that  is  to  say,  the  said  {here  follows  the  award) 

In  Witness  Whereof,  have  hereunto  subscribed  these  presents, 

this  day  of  one  thousand  eight  hundred  and 

{Signatures.) 

In  Presence  of 


CHAPTER  XX. 
THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 


SECTION  I. 

A    PRIVATE     CARRIER. 

One  who  carries  goods  for  another  is  either  a  private  carrier 
or  a  common  carrier. 

A  private  carrier  is  one  who  carries  for  others  once,  or  some- 
times, but  who  does  not  pursue  the  business  of  carrying  as  his 
17 


258      THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

usual  and  professed  occupation.  The  contract  between  him  and 
the  owner  of  the  goods  which  he  carries  is  one  of  service,  and 
is  governed  by  the  ordinary  rules  of  law.  Each  party  is  bound 
to  perform  his  share  of  the  contract.  Such  a  carrier  must 
receive,  care  for,  carry,  and  deliver  the  goods,  in  such  wise  as 
he  bargains  to  do. 

If  he  carries  the  goods  for  hire,  whether  actually  paid  or  due, 
he  is  bound  to  use  ordinary  diligence  and  care ;  by  which  the 
law  means  such  care  as  a  man  of  ordinary  capacity  would  take 
of  his  own  property  under  similar  circumstances.  If  any  loss  or 
injury  occur  to  the  goods  while  in  his  charge,  from  the  want  of 
such  care  or  diligence  on  his  part,  he  is  responsible.  But  if  the 
loss  be  chargeable  as  much  to  the  fault  of  the  owner  as  of  the 
carrier,  he  is  not  liable.  The  owner  must  show  the  want 
of  care  or  diligence  on  the  part  of  the  private  carrier,  to 
make  him  liable ;  but  slight  evidence  tending  that  way  would 
suffice  to  throw  upon  him  the  burden  of  accounting  satisfactorily 
for  the  loss.  And  if  there  is  such  negligence  on  the  part  of  the 
carrier,  or  of  a  servant  for  wdiom  he  is  responsible,  the  carrier 
is  liable,  although  the  loss  be  caused  primarily  by  a  defect  in  the 
thing  carried. 

If  he  carries  the  goods  without  any  compensation,  paid  or 
promised,  he  is,  in  the  language  of  the  law,  a  gratuitous  bailee, 
or  mandatary  :  he  is  now  bound  only  to  slight  care ;  which  is 
such  care  as  every  person,  not  insane  or  fatuous,  would  take  of 
nis  own  property.  For  the  want  of  this  care,  which  would  be 
gross  negligence,  he  is  responsible,  but  not  for  ordinary  negli- 
gence. 

We  sum  up  what  may  be  said  of  the  private  carrier  in  the 
remark,  that  the  general  rules  which  regulate  contracts  and 
mutual  obligations  apply  to  the  duties  and  the  rights  of  a  pri- 
vate carrier,  with  little  or  no  qualification.  But  it  is  otherwise 
with  a  common  carrier. 

SECTION  II. 

THE   COMMON    CARRIER. 

The  law  in  relation  to  the  rights,  the  duties,  and  the  respon- 
sibilities of  a  common  carrier  is  quite  peculiar.     The  reasons  for 


THE  COMMOX  CARRIER. 


259 


it  are  discernible,  but  it  rests  mainly  upon  established  iisac!;e  and 
custom.  And,  as  these  usages  have  changed  considerabl}-  in 
modern  times,  this  law  has  undergone  important  modifications. 

He  is  a  common  carrier  "  who  undertakes,  for  hire,  to  trans- 
port the  goods  of  such  as  choose  to  employ  him  from  some 
known  and  definite  place  or  places  to  other  known  and  definite 
place  or  places."  He  is  one  who  undertakes  the  carriage  of 
goods  as  a  biisiiiess ;  and  it  is  mainly  this  which  distinguishes 
him  from  the  private  carrier. 

The  rights  and  responsibilities  of  the  common  carrier  may 
be  briefly  stated  thus :  He  is  bound  to  take  the  goods  of  all  who 
offer,  if  he  be  a  carrier  of  goods,  and  the  persons  of  all  who  offer, 
if  he  be  a  carrier  of  passengers ;  and  to  take  due  care  and  make 
due  transport  and  delivery  of  them.  He  has  a  lien  on  the  goods 
which  he  carries,  and  on  the  baggage  of  passengers,  for  his  com- 
pensation. He  is  liable  for  all  loss  or  injury  to  the  goods  under 
his  charge,  although  wholly  free  from  negligence,  unless  the 
loss  happens  from  the  act  of  God,  or  from  the  public  enemiy. 
These  three  rules  will  be  considered  in  the  next  section. 

The  important  thing  to  be  remembered  is,  that  a  private 
carrier  is  not  liable  for  injury  to  persons,  or  loss  of  or  injury  to 
goods,  without  fault  or  negligence  on  his  part ;  but  a  common 
carrier  is  liable,  without  any  fault  or  negligence  on  his  part. 

Truckmen  or  draymen,  porters,  and  others  who  undertake  the 
carriage  of  goods  for  all  applicants  from  one  city  or  tow  n  to 
another,  or  from  one  part  of  a  city  to  another,  are  chargeable 
as  common  carriers.  So,  proprietors  of  stage-coaches  are  charge- 
able as  common  carriers  of  passengers,  and  of  the  baggage  of 
passengers  ;  or  the  baggage  of  others,  if  they  so  advertise  them- 
selves. So  are  hackney-coachmen  within  their  accustomed 
range. 

If  drivers  of  stages,  or  omnibuses,  commonly  carry  and 
receive  pay  for  goods  or  parcels  which  are  not  the  baggage  j£ 
passengers,  and  are  held  out  or  advertised,  or  generally  known, 
as  so  carrying  them,  they  are  common  carriers  of  goods,  and  the 
proprietors  are  liable  for  the  loss  of  such  parcels,  although 
neither  they  nor  the  drivers  were  in  fault.  But  if  there  is  no 
such  habit  or  usage,  and  the  driver  receives  such  a  parcel  to  be 


26o       THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

carried  somewhere,  and  is  paid  for  it,  the  driver  carries  it  as  a 
private  carrier,  and  not  as  a  common  carrier,  and  is  chargeable 
only  for  negligence  or  fault.  And  if  the  line  of  carriages  is 
established  for  passengers,  and  the  driver  does  not  account  for 
what  is  paid  him  for  occasional  parcels,  but  takes  it  as  his  own 
perquisite,  the  proprietors  are  not  answerable  even  for  the 
driver's  fault  or  negligence,  unless  circumstances  in  some  way 
bring  the  fault  home  to  them. 

In  this  country,  in  recent  times,  the  business  of  carrying 
goods  and  passengers  is  almost  monopolized  by  what  are  called 
expressmen,  by  railroads,  or  by  lines  of  steam-packets  along  our 
coasts,  or  upon  our  navigable  streams  or  lakes.  All  these  are 
undoubtedly  common  carriers ;  and  although  their  peculiar  method 
of  carrying  on  this  business  is  new,  and  wdll  require  from  us 
especial  consideration  in  another  chapter,  there  can  be  no  doub» 
of  their  being,  to  all  intents  and  purposes,  common  carriers. 

Ordinary  sailing  vessels  are  sometimes  said  to  be  common 
carriers.  We  should  be  disposed  to  restrict  this  term,  howevei, 
to  regular  packets ;  or,  at  most,  to  call  by  this  name  general 
freighting  ships.  It  is  not,  however,  necessary  to  consider  this 
question,  as  water-borne  goods  are  now  almost  always  carried 
under  bills  of  lading,  which  determine  the  relations  and  respect- 
ive rights  of  the  parties ;  and  these  we  shall  consider  in  out- 
chapter  on  the  Law  of  Shipping. 

The  boatmen  on  our  rivers  and  canals  are  common  carriers, 
and  ferrymen  are  common  carriers  of  passengers  by  their  office,, 
and  may  become  common  carriers  of  goods  by  taking  up  than; 
business.  A  steamboat  usually  employed  as  a  carrier  may  do 
something  else,  as  tow  a  vessel  out  of  a  harbor,  or  the  like;  and 
the  character  of  common  carrier  does  not  attach  to  this  special 
employment,  and  carry  with  it  its  severe  liabilities.  Therefore, 
for  a  loss  occurring  to  a  ship  in  her  charge  while  so  employed, 
the  owner  of  the  steamer  is  not  liable  without  negligence  on  his 
part,  or  on  the  part  of  those  whom  he  employs. 

The  same  person  may  be  a  common  carrier,  and  also  hold 
other  offices  or  relations.  He  may  be  a  warehouseman,  a 
wharfinger,  or  a  forwarding  merchant.  The  peculiar  liabilities 
of  the  common  carrier  do  not   attach  to  either  of  these  offices 


OBLIGATION  OF  THE  COM M OX  CARRIER.  261 

or  employments.  Thus,  a  warehouseman  is  liable  for  the  loss 
of  the  goods  which  he  takes  for  storage,  only  in  case  of  his  own 
negligence ;  he  is  not,  as  a  common  carrier  is  said  to  be,  an 
insurer  of  the  goods.  The  question  then  arises,  when  the  lia 
bility  of  such  a  person  is  that  of  a  warehouseman,  and  when  it 
is  that  of  a  carrier. 

If  a  carrier  receives  goods  to  be  stored  until  he  can  carry 
them, — a  canal-boatman,  for  example, — or  if,  at  the  end  of  tl  ^ 
journey,  he  stores  them  for  a  time  for  the  safety  of  the  goods 
or  the  convenience  of  the  owner,  while  thus  stored  he  is  liable 
only  as  warehouseman.  But  if  he  puts  them  into  his  store  or 
office  only  for  a  short  time,  and  for  his  own  convenience,  either 
at  the  beginning  or  end  of  the  transit  (or  journey),  they  are  in 
].is  hands  as  carrier. 

Where  these  relations  seem  to  unite  and  mingle  in  one  per- 
son, it  may  be  said  to  be  the  general  rule,  that,  Avherever  the 
deposit,  in  whatever  place  or  building,  is  secondary  and  subor- 
dinate to  the  carriage  of  the  goods,  which  is,  therefore,  the  chief 
ihing,  the  party  taking  the  goods  is  a  carrier  ;  and  otherwise  a 
aepositary  only  of  some  kind.  If,  therefore,  goods  are  deliv- 
vxed  to  a  carrier,  or  at  his  depot  or  receiving-room,  with  direc- 
tions not  to  carry  them  until  further  orders,  he  is  only  a 
'(epositary,  and  not  a  carrier,  until  those  orders  are  received  ; 
«>ut  when  they  are  received  he  becomes  a  carrier ;  and  if  the 
•^oods  are  afterwards  lost  or  injured  before  their  removal,  he  is 
liable  as  a  common  carrier  without  negligence  or  fault  on  his 
part. 

SECTION   III. 

THE  OBLIGATION  OF  THF  COMMON  CARRIER  TO  RECEIVE  AND  CARRY  GOODS 

OR   PASSENGERS. 

He  cannot  refuse  to  receive  and  carry  goods  offered,  with- 
out good  cause  ;  for,  by  his  openly  announcing  himself  in  any 
way  as  engaged  in  this  business,  he  makes  an  offer  to  the  publ.c 
which  becomes  a  kind  of  contract  as  to  any  one  who  accepts 
it.  He  may  demand  his  compensation,  however,  and,  if  it  be 
refused,  he  may  refuse  to  carry  the  goods  ;  nor  is  he  bound  to 
carry  them  if  security  be  offered  to  him,  but  not  the  money. 
But  if  the  freight-money  be  not  demanded,  the  owner  of  the 


262       THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

goods,  if  he  is  able,  ready,  and  willing  to  pay  it,  has  all  his 
rights  although  he  does  not  make  a  formal  tender  of  the  money. 
A  carrier  may  refuse  if  his  means  of  carriage  are  already  fully 
employed.  But,  in  a  case  where  a  railway  company,  being  com- 
mon carriers,  had  issued  excursion-tickets  for  a  journey,  it  was 
held  that  they  were  not  excused  from  carrying  passengers 
according  to  their  contract,  upon  the  ground  that  there  was  no 
room  for  them  in  their  conveyance  ;  and  that,  in  order  to  avail 
themselves  of  this  answer,  they  should  make  their  contract  condi- 
tional upon  there  being  room.  If  the  common  carrier  cannot 
carry  the  goods  without  danger  to  them,  or  to  himself  or  other 
goods,  or  without  extraordinary  inconvenience,  or  if  they  are 
not  such  goods  as  it  is  his  regular  business  to  carry,  he  is 
excused  for  not  carrying  them.  He  is  always  entitled  to  his 
usual  charge,  but  not  to  extraordinary  compensation,  unless  for 
extraordinary  service. 

The  common  carrier  of  goods  is  bound  to  receive  them  in  ? 
suitable  way,  and  at  suitable  times  and  places.  If  he  has  an 
office  or  station,  he  must  have  proper  persons  there,  and  proper 
means  of  security.  During  the  transit,  and  at  all  stopping, 
places,  due  care  must  be  taken  of  all  goods,  and  that  means  the 
kind  and  measure  of  care  appropriate  for  goods  of  that  descriph 
tion.  If  he  have  notice,  by  writing  on  the  article  or  otherwise, 
of  the  need  of  peculiar  care, — as,  "  Glass,  with  great  care,"  or 
"This  side  uppermost,"  or  "To  be  kept  dry," — he  is  bound  to 
comply  with  such  directions,  supposing  them  not  to  impos*^. 
unnecessary  care  or  labor. 

If  he  carry  passengers  he  must  receive  all  who  offer,  unless  he 
has  some  special  and  sufficient  reason  for  refusing. 

In  a  case  tried  before  the  Supreme  Judicial  Court  of  Massa- 
chusetts, it  was  held  that  if  an  inn-keeper,  who  has  frequently 
entered  a  railroad  depot  and  annoyed  passengers  by  soliciting 
them  to  go  to  his  inn,  receives  notice  from  the  superintendent 
of  the  depot  that  he  must  do  so  no  more,  and  he  nevertheless 
repeatedly  enters  the  depot  for  the  same  purpose,  and  after- 
v/ards  obtains  a  ticket  for  a  passage  in  the  cars,  with  an  actual 
intention  of  entering  the  cars  as  a  passenger,  and  goes  into  the 
depot  on  his  way  to  the  cars,  and  the  superintendent,  believing 


OBLIGATION  OF  THE  COMMON  CARRIER.  263 

that  he  has  entered  the  dqoot  to  solicit  passengers,  orders  him 
to  go  out,  and  he  does  not  exhibit  his  ticket,  nor  give  notice  of 
his  real  intention,  but  presses  forward  towards  the  cars,  and  the 
superintendent  and  his  assistants  therefore  forcibly  remove  him 
from  the  depot,  using  no  more  force  than  is  necessary  for  that 
purpose,  such  removal  is  justifiable,  and  not  an  indictable  assault 
and  battery. 

A  common  carrier  is  bound  to  carry  his  passengers  over  the 
whole  route,  and  at  a  proper  speed,  or  supply  proper  means  of 
transport ;  to  demand  only  a  reasonable  or  usual  compensation  ; 
to  notify  his  passengers  of  any  peculiar  dangers  ;  to  treat  all 
alike,  unless  there  be  actual  and  sufficient  reason  for  the  dis- 
tinction, as  in  the  filthy  appearance,  dangerous  condition,  or 
misconduct  of  a  passenger ;  and  to  behave  to  all  with  civility 
and  decorum. 

He  must  also  have  proper  carriages,  and  keep  them  in  good 
condition,  and  not  overload  them ;  and  suitable  horses  and 
drivers ;  stop  at  the  usual  places,  with  proper  intervals  for  rest 
or  food  ;  take  the  proper  route  ;  and  drive  at  proper  speed  ;  and 
leave  the  passengers  at  the  usual  stopping-places,  or  wherevet 
he  agrees  to.  In  none  of  these  things  can  he  depart  from 
what  is  usual  and  proper  at  his  own  pleasure.  And  if  by  any 
breach  of  these  duties  a  passenger  is  injured,  the  carrier  is 
responsible.  So  if  he  puts  his  passengers  in  peril,  and  one  of 
them  be  hurt  by  an  effort  to  escape,  as  in  jumping  off,  it  is  n(» 
defence  for  the  carrier  to  show  that  he  would  have  been  safe  if 
he  had  remained. 

In  one  case  it  was  held  that  a  common  carrier  who  had 
received  a  pickpocket  as  a  passenger  on  board  his  vessel,  and 
taken  his  fare,  could  not  put  him  on  shore  so  long  as  he  was  not 
guilty  of  any  impropriety.  But  this  may  be  doubted.  The 
common  carrier  must  certainly  employ  competent  and  well- 
behaved  persons  for  all  duties,  and  for  failure  in  any  of  the  par- 
ticulars of  his  duties  and  obligations,  he  is  responsible  not  only 
to  the  extent  of  any  damage  caused  thereby,  but  also,  in  many 
cases,  for  pain  and  injury  to  the  feelings.  He  is  also  bound  to 
deliver  to  each  passenger  all  his  baggage  at  the  end  of  his  jour- 
ney, and  is  held  liable  if  he  delivers  it  to  a  wrong  party  on  a 
forged  order,  and  without  personal  default. 


264      THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

Lastly,  he  must  make  due  delivery  of  the  goods  at  the 
proper  time,  in  the  proper  way,  and  at  the  proper  place,  and 
to  the  jDroper  person ;  and  this  person  should  be  some  one 
who  was  authorized  by  the  owner  or  sender  to  receive  the 
goods. 

If  a  party  authorized  to  receive  the  goods  refuse,  or  is 
unable  to  do  so,  the  carrier  must  keep  them  for  the  owner,  and 
with  due  care  ;  but  now  under  the  liability  of  a  warehouseman, 
and  not  of  a  carrier ;  that  is,  he  is  now  liable  only  for  fault  of 
some  kind. 

So  the  carrier  must  keep  the  goods  for  the  owner,  if  he  has 
good  reason  to  believe  that  the  consignee  is  dishonest,  and  will 
defraud  the  owner  of  his  property.  As  to  the  time  when  goods 
:should  be  delivered,  it  must  be  within  the  proper  hours  for  busi- 
ness, when  they  can  be  suitably  stored  ;  or  if  the  goods  are  deliv- 
■ired  to  the  sender  himself,  or  at  his  house,  then  at  some  suitable 
and  convenient  hour. 

There  must  be  no  unnecessary  delay,  and  the  goods  must 
be  delivered  as  soon  after  a  detention  as  may  be  with  due 
diligence. 

As  to  the  way  and  the  place  at  which  the  goods  should  be 
delivered,  much  must  depend  upon  the  nature  of  the  goods, 
and  much  also  upon  the  usage  in  regard  to  them,  if  such  usage 
exists. 

The  goods  should  be  so  left,  and  with  such  notice,  as  to 
■secure  the  early,  convenient,  and  safe  reception  of  them  by  the 
person  entitled  to  have  them.  Something  also  must  depend  on 
this  point,  on  the  mode  of  conveyance.  A  man  may  carry  a 
parcel  into  the  house  and  deliver  it  to  the  owner  or  his  servant ; 
a  wagon  or  cart  can  go  to  the  gate,  or  into  the  yard,  and  there 
deliver  what  it  carries.  A  vessel  can  go  to  one  wharf  or  another, 
and  is  bound  to  go  to  that  which  is  reasonably  convenient  to  the 
consignee,  or  to  one  that  was  agreed  upon  ;  but  a  vessel  is  not 
always  bound  to  comply  with  requirements  of  the  consignee  as 
to  the  very  wharf  the  goods  should  be  left  at,  but  may  leave  the 
goods  at  any  safe,  convenient,  and  accessible  wharf  at  which 
such  goods  are  usually  left. 

Where  the  goods  are  not  delivered  to  the  owner  personally. 


OBLIGA  TIOX  OF  THE  COMMON  CARRIER.  265 

or  to  his  agent,  immediate  notice  should  be  given  to  the  owner. 
The  carrier  is  generally  obliged  to  give  notice  of  the  delivery 
of  goods,  and  if  the  owner  has  in  any  way  designated  how  the 
goods  may  be  delivered  to  himself,  he  is  bound  to  obey  this 
direction.  The  notice  must  be  prompt  and  distinct.  And  if 
the  goods  are  delivered  at  an  unsuitable  or  unauthorized  place, 
no  notice  will  make  this  a  good  delivery. 

Railroads  terminate  at  their  station,  and  although  goods 
might  be  sent  by  wagons  to  the  house  or  store  of  consignees, 
this  is  not  usually  done,  as  it  is  considered  that  the  railroad 
carrier  has  finished  his  transit  at  his  own  terminus.  Usually, 
the  consignee  of  goods  sent  by  railroad  has  notice  from  the 
consignor  when  to  expect  them ;  and  this  is  so  common,  that  it 
is  seldom  necessary,  in  fact,  for  the  agents  of  the  railroad  to 
give  notice  to  the  consignee.  But  this  should  be  given  where 
it  is  necessary;  and  should  be  given  as  promptly,  directly,  and 
specifically  as  may  be  necessary  for  the  purpose  of  the  notice. 

A  railroad  company  may  be  comijared  to  owners  of  ships  in 
this  respect,  that  neither  can  take  the  cars  or  the  ships  farther 
than  the  station  or  the  wharf,  and  therefore  may  deliver  the 
goods  there.  But  a  carrier  by  water  is  bound  to  give  notice 
that  the  goods  are  on  the  wharf,  and  is  not  exonerated  as  carrier 
until  he  gives  such  notice ;  whereas,  a  railroad  company  is  not 
bound  to  give  notice. 

It  may  happen  that  some  third  party  may  claim  the  goods 
under  a  title  adverse  to  that  of  the  consignor  or  consignee.  If 
the  carrier  refuse  to  deliver  them  to  this  third  party,  and  it 
turns  out  that  the  claimant  had  a  legal  right  to  demand  them, 
the  carrier  would  be  liable  in  damages  to  him.  But  the  carrier 
may  and  should  demand  full  and  clear  evidence  of  the  claimant's 
title  ;  and  if  the  evidence  be  not  satisfactory,  he  may  demand 
security  and  indemnity.  If  the  evidence  or  the  indemnity  be 
withheld,  he  certainly  should  not  be  held  answerable  for  any- 
thing beyond  that  amount  which  the  goods  themselves  would 
satisfy,  for  he  is  in  no  fault.  If  he  delivers  the  goods  to  such 
claimant,  proof  that  the  claimant  had  good  title  is  an  adequate 
defence  against  any  suit  by  the  consignor  or  consignee  for  non- 
delivery. 


266      THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

SECTION  IV. 

THE    LIEN    OF    THE   COMMON    CARRIER. 

The  legal  meaning  of  this  word,  as  we  have  said  before, 
when  we  have  had  occasion  to  use  the  word  in  preceding  chap- 
ters, is  the  right  of  holding  or  detaining  property  until  some 
charge  against  it,  or  some  claim  upon  the  owner  on  account  of 
it  is  satisfied. 

The  common  carrier  has  this  right  against  all  the  goods  he 
carries,  for  his  compensation.  While  he  holds  them  for  this 
purjDose,  he  is  not  liable  for  loss  or  injury  to  them  as  a  common 
carrier;  that  is,  not  unless  the  injury  happen  from  his  own 
fault. 

He  may  not  only  hold  the  goods  for  his  compensation,  but 
may  recover  this  out  of  them,  by  any  of  the  usual  means  in 
which  a  lien  upon  personal  chattels  is  made  productive.  That 
is,  he  holds  them  just  as  if  they  were  pledged  to  him  by  the 
owner  as  a  security  for  the  debt.  Therefore,  if  the  debt  be  not 
paid  in  a  reasonable  time  after  it  is  due  and  demanded,  the 
carrier  may  have  a  decree  of  a  court  of  equity  for  their  sale; 
or  may  sell  them  himself  at  auction,  retaining  his  pay  from  the 
proceeds,  and  paying  over  the  remainder.  But  to  make  this 
course  justifiable  and  safe,  the  carrier  must  wait  a  reasonable 
time,  and  give  full  notice  of  his  intention,  so  that  the  owner 
may  have  a  convenient  opportunity  to  redeem  the  goods ;  and 
there  must  be  proper  advertisement  of  the  sale,  and  every  usual 
precaution  taken  to  insure  a  favorable  sale;  and  the  carrier 
must  not  himself  buy  the  goods,  and  must  act  in  all  respects 
with  entire  honesty. 

SECTION  V. 

I 

THE    LIABILITY    OF    THE    COMMON    CARRIER. 

This  is  perfectly  well  established  as  a  rule  of  lav/,  although 
it  is  very  exceptional  and  peculiar.  It  is  sometimes  said  to 
arise  from  the  public  carrier  being  a  kind  of  public  officer.  But 
the  true  reason  is  the  confidence  which  is  necessarily  reposed  in 
him,  the  power  he  has  over  the  goods  intrusted  to  him,  the  ease 
with  which  he  may  defraud  the  owner  of  them,  and  yet  make  it 


LIABILITY  OF  THE  COMMON  CARRIER.  267 

appear  that  he  was  not  in  fault,  and  the  difficulty  vvhlch  the 
owner  might  have  in  making  out  proof  of  his  default.  This 
reason  it  is  important  to  remember,  because  it  helps  us  to  con- 
strue and  apply  the  rules  of  law  on  this  subject  Thus,  the 
rule  is  that  the  common  carrier  is  liable  for  any  Icfo  or  injury  to 
goods  under  his  charge,  unless  it  be  caused  by  t^:e  act  of  God, 
or  by  the  public  enemy.  The  rule  is  intended  to  hold  the  com- 
mon carrier  responsible  wherever  it  was  possible  that  he  caused 
the  loss,  either  by  negligence  or  design. 

Hence,  the  act  of  God  means  some  act  in  which  neither  the 
carrier  himself,  nor  any  other  man,  had  any  direct  and  immediate 
agency.  If,  for  example,  a  house  in  which  the  goods  are  at 
night  is  struck  by  lightning,  or  blown  over  by  a  tempest,  or 
washed  away  by  inundation,  the  carrier  is  not  liable.  This  is  an 
act  of  God,  although  man's  agency  interferes  in  causing  the 
loss ;  for  without  that  agency,  the  goods  would  not  have  been 
there.  But  no  man  could  have  directly  caused  the  loss.  Oii 
the  other  hand,  if  the  building  was  set  on  fire  by  an  incendiary 
at  midnight,  and  the  rapid  spread  of  the  flames  made  :it 
absolutely  impossible  to  rescue  the  goods,  this  might  be  ari 
inevitable  accident  if  the  carrier  were  wholly  innocent,  but  it 
would  also  be  possible  that  the  incendiary  was  in  collusion  with 
the  carrier  for  the  purpose  of  concealing  his  theft ;  and  there- 
fore the  carrier  would  be  liable  for  such  a  loss,  however 
innocent. 

As  a  general  rule,  the  common  carrier  is  always  liable  fcr 
loss  by  fire,  unless  it  is  caused  by  lightning,  an  accidental  fire 
not  being  considered  an  act  of  God,  or  a  peril  of  the  sea ;  and 
this  rule  has  been  applied  to  steamboats  and  other  vessels.  So, 
it  may  be  true  that  after  the  lightning,  the  tempest,  or  inunda- 
tion, the  carrier  was  negligent,  and  so  lost  the  goods  which 
might  have  been  saved  by  proper  efforts,  or  that  he  took  the 
opportunity  to  steal  them.  If  this  could  be  shown,  the -carrier 
would,  of  course,  be  liable ;  but  the  law  will  not  suppose  this 
without  proof,  if  the  first  and  main  cause  were  such  that  the 
carrier  could  not  have  been  guilty  in  respect  to  it.  So,  a  com. 
mon  carrier  would  be  liable  for  a  loss  caused  by  a  robbery, 
however  sudden,   unexpected,    and   irresistible,  or  by  a  theft, 


268      THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

however  wise  and  full  his  precautions,  and  however  subtle  and 
ingenious  the  theft,  although  either  of  these  might  seem  to  be 
unavoidable  by  any  means  of  safety  which  it  would  be  at  all 
reasonable  to  require. 

The  general  principles  of  agency  extend  to  common  carriers, 
and  make  them  liable  for  the  acts  of  their  agents,  done  while  in 
the  discharge  of  the  agency  or  employment.  So,  the  knowledge, 
of  his  agent  is  the  knowledge  of  the  carrier,  if  the  agent  be 
authorized  expressly,  or  by  the  nature  of  his  employment,  to 
receive  this  notice  or  knowledge.  But  an  agent  for  a  common 
carrier  may  act  for  himself, — as  a  stage-coachman  in  carrying 
parcels,  for  which  he  is  paid  personally  and  does  not  account 
with  his  employer, — and  then  the  employer,  as  we  have  said,  is 
7iot  liable,  unless  the  owner  of  the  goods  believed  the  stage- 
it  oachman  carried  the  goods  for  his  employer,  and  was  justified 
ly  the  facts  and  apparent  circumstances  in  so  believing. 

A  carrier  may  be  liable  beyond  his  own  route.  It  is  very 
common  for  carriers,  who  share  between  them  the  parts  of  a 
long  route,  to  unite  in  the  business  and  the  profits,  and  then  all 
ure  liable  for  a  loss  on  any  part  of  the  route. 

If  they  are  not  so  united  in  fact,  but  say  they  are  so,  or  say 
what  indicates  that  they  are  so,  they  justify  a  sender  in  sup- 
y)Osing  they  are  united,  and  then  they  are  equally  liable. 

If  a  carrier  takes  goods  to  carry  only  as  far  as  he  goes,  and 
then  engages  to  send  them  forward  by  another  carrier,  he  is 
'jable  as  carrier  to  the  end  of  his  own  route ;  he  is  liable  also  if 
he  neglects  to  send  the  goods  on ;  but  he  is  not  liable  for  what 
may  happen  to  them  afterwards. 

SECTION  VI. 

THE   CARRIER    OF    PASSENGERS. 

The  carriers  of  passengers  are  under  a  more  limited  liability 
than  the  carriers  of  goods.  This  is  now  well  settled.  The 
reason  is,  that  they  have  not  the  same  control  over  passengers 
as  over  goods;  cannot  fasten  them  down,  and  use  other  means 
of  securing  them.  But  while  the  liability  of  the  carrier  of 
passengers  is  thus  mitigated,  it  is  still  stringent  and  extreme. 


NOTICE  BY  CARRIER  RESPECTING  LIABILITY.     269 

No  proof  of  care  will  excuse  the  carrier  if  he  loses  goods  corii* 
rnitted  to  him.  But  proof  of  tJie  iitmost  care  will  excuse  hiia 
ior  injury  done  to  passengers;  for  the  carrier  of  passengers  is 
Jiable  for  injury  to  them,  unless  he  can  show  that  he  took  all 
possible  care, — giving  always  a  reasonable  construction  to  this 
phrase ;  and  in  the  case  of  railroad  companies  there  is  authority 
for  using  the  words  in  almost  their  literal  meaning;  that  is,  for 
holding  them  liable  for  all  injury  to  passengers  which  could  have 
been  possibly  avoided. 

SECTION  VII. 

A  NOTICE  BY  THE  CARRIER,  RESPECTING  HIS  LIABILITY. 

The  common  carrier  has  a  right  to  make  a  special  agree- 
ment with  the  senders  of  goods,  which  shall  materially  modifv. 
or  even  wholly  prevent,  his  liability  for  accidental  loss  or  injury 
to  the  goods. 

The  question  is.  What  constitutes  such  a  bargain  .'  A  meri« 
notice  that  the  carrier  is  not  responsible,  or  his  refusal  to  b"< 
responsible,  although  brought  home  to  the  knowledge  of  thr 
other  party,  does  not  necessarily  constitute  an  agreement.  Thy 
reason  is  this.  The  sender  has  a  right  to  insist  upon  sendinr,; 
his  goods,  and  the  passenger  has  a  right  to  insist  upon  goin;,-; 
himself  with  customary  baggage,  leaving  the  carrier  to  hiy 
legal  responsibility  ;  and  the  carrier  is  bound  to  take  them  om 
these  terms.  If,  therefore,  the  sender  or  the  passenger,  aftd; 
receiving  such  notice,  only  sends  or  goes  in  silence,  and  with 
out  expressing  any  assent,  especially  if  the  notice  be  given  av, 
such  time,  or  under  such  circumstances,  as  would  make  it 
inconvenient  for  the  sender  not  to  send,  or  for  the  passenger 
not  to  go,  then  the  law  will  not  presume  from  his  sending  or 
going  an  assent  to  the  carrier's  terms. 

But  the  assent  may  be  expressed  by  words,  or  made  mani- 
ijst  by  acts  ;  and  it  is  in  each  case  a  question  of  evidence  for 
the  jury  whether  there  was  such  an  agreement. 

But  a  notice  by  the  carrier,  which  only  limits  and  defines 
his  liability  to  a  reasonable  extent,  without  taking  it  away,  as 
one  which  states  what  kind  of  goods  he  will  carry,  and  what  he 
will  not ;  or  to  what  amount  only  he  will  be  liable  for  passen- 


270 


THE  CARRIAGE  OF  GOODS  AND  PASSENGERS. 


gers'  baggage,  without  special  notice ;  or  what  information  he 
will  require,  if  certain  articles,  as  jewels  or  gold,  are  carried; 
or  what  increased  rates  must  be  paid  for  such  things, — any 
notice  of  this  kind,  if  in  itself  reasonable  and  just,  will  bind 
the  party  receiving  it. 

No  party  will  be  affected  by  any  notice, — neither  the  carrier, 
nor  a  sender  of  goods,  nor  a  passenger, — unless  a  knowledge 
cf  it  can  be  brouglit  home  to  him.  In  a  case  in  Pennsylvania, 
where  the  notice  was  in  the  English  language,  and  the  passenger 
was  a  German,  who  did  not  understand  English,  it  was  held 
that  the  carrier  must  prove  that  the  passenger  had  actual 
knowledge  of  the  limitation  in  the  notice. 

But  the  knowledge  may  be  brought  home  to  him  by  indirect 
evidence.  As  by  showing  that  it  was  stated  on  a  receipt  given 
to  him,  or  on  a  ticket  sold  him,  or  in  a  newspaper  which  he  read, 
or  even  that  it  was  a  matter  of  usage,  and  generally  known 
This  question  is  one  of  fact,  which  the  jury  will  determine  upon 
all  the  evidence,  under  the  direction  of  the  court.  And  if  the 
notice  is  ambiguous,  they  will  be  directed  to  give  it  the  mean- 
ing which  is  against  the  carrier,  because  it  was  his  business  to 
make  it  plain  and  certain. 

Any  fraud  towards  the  carrier,  as  a  fraudulent  disregard  of 
a.  notice,  or  an  effort  to  cast  on  him  a  responsibility  he  is  not 
obliged  to  assume,  or  to  make  his  liability  seem  to  be  greater 
than  it  really  is,  will  extinguish  the  liability  of  the  carrier  so 
Jar  as  it  is  affected  by  such  a  fraud. 

If  a  carrier  gives  notice  which  he  is  authorized  to  give,  the 
party  receiving  it  is  bound  by  it,  and  the  carrier  is  under  no 
obligation  to  make  a  special  inquiry  or  investigation  to  see  that 
the  notice  is  complied  with,  but  may  assume  that  this  is  done. 

It  should,  however,  be  remarked  that  such  notice  affects  the 
liability  of  the  common  carrier  only  so  far  as  it  is  peculiar  to 
him,  that  is,  his  liability  for  a  loss  which  occurs  without  his 
agency  or  fault  ;  for  he  is  just  as  liable  as  he  would  be  without 
any  notice,  for  a  loss  or  injury  caused  by  his  own  negligence  or 
default. 

Perhaps  a  common  carrier  might  make  a  valid  bargain  which 
would   protect  him  against  every  thing  but  his  own  wilful  or 


CARRIER'S  LIABILITY  FOR  GOODS  OF  PASSENGERS.     27 1 

fraudulent   misconduct.     But  no  bargain  could  be  made  to  pro- 
tect him  against  this. 

SECTION  VIII. 

THE  carrier's  LIABILITY  FOR  GOODS  CARRIED  BY  PASSENGERS. 

A  CARRIER  of  goods  kiiows  what  goods,  or  rather  what 
parcels  and  packages,  he  receives  and  is  responsible  for.  A 
carrier  of  passengers  is  responsible  for  the  goods  they  carry 
with  them  as  baggage  ;  what  that  is,  the  carrier  does  not  always 
know ;  and  he  is  responsible  only  to  the  extent  of  what  might 
be  fairly  and  naturally  carried  as  baggage.  This  must  always 
be  a  question  of  fact,  to  be  settled  as  such  by  the  jury,  upon 
all  the  evidence,  and  under  the  direction  of  the  court.  But 
there  can  be  no  precise  and  definite  standard.  A  traveller  on 
a  long  journey  needs  more  money  and  more  baggage  than  on  a 
short  one ;  one  going  to  some  places  and  for  some  purposes 
needs  more  than  one  going  to  other  places  or  for  other  pur- 
poses. 

Thus  in  New  York  it  was  decided  that  baggage  does  not 
properly  include  money  in  a  trunk,  or  any  articles  usually 
carried  about  the  person.  And  in  another  New  York  case,  it 
was  held  that,  where  the  baggage  of  a  passenger  consists  of  an 
ordinary  travelling-trunk,  in  which  there  is  a  large  sum  o< 
money,  such  money  is  not  considered  as  included  under  thw 
term  baggage,  so  as  to  render  the  carrier  responsible  for  il. 
But  generally  a  passenger  may  carry  as  baggage,  money  no;: 
exceeding  an  amount  ordinarily  carried  for  travelling-expenses, 
So  in  Massachusetts  it  was  held  that  common  carriers  are 
responsible  for  money  bond  fide  included  in  the  baggage  of  a 
passenger,  for  travelling-expenses  and  personal  use,  to  an 
amount  not  exceeding  what  a  prudent  person  would  deem 
proper  and  necessary  for  the  purpose. 

In  Pennsylvania,  carriers  have  been  held  responsible  for 
ladies'  trunks  containing  apparel  and  jewels.  And  in  Illinois, 
a  common  carrier  of  passengers  has  been  held  liable  for  the 
loss  of  a  pocket-pistol,  and  a  pair  of  duelling-pistols,  contained 
in  the  carpet-bag  of  a  passenger,  which  was  stolen  out  of  the 
possession   of  the  carrier.     But  in  Tennessee,  it  has  been  held 


272       THE  CARRIAGE  OF  GOODS  AND  PASSEA'GERS. 

that  "  a  silver  watch,  worth  about  thirty-five  dollars,  also 
medicines,  handcuffs,  locks,  &c.,  worth  about  twenty  dollars," 
were  not  included  in  the  term  baggage,  and  that  the  carrier  was 
not  responsible  for  their  loss.  In  Ohio,  it  has  been  held  that  a 
gold  watch,  of  the  value  of  ninety-five  dollars,  was  a  part  of  the 
traveller's  baggage,  and  his  trunk  a  proper  place  to  carry  it  in. 
In  another  New  York  case  it  has  been  held  that  the  owners  of 
steamboats  were  liable  as  common  carriers  for  the  baggage  of 
passengers  ;  but,  to  subject  them  to  damages  for  loss  thereof, 
it  must  be  strictly  baggage  ;  that  is,  such  articles  of  necessity 
and  personal  convenience  as  are  usually  carried  by  travelers. 
And  it  was  accordingly  held,  in  that  case,  that  the  carrier  was 
not  liable  for  the  loss  of  a  trunk  containing  valuable  merchan- 
dise and  nothing  else,  although  it  did  not  appear  that  the  plaiir- 
ti£f  had  any  other  trunk  with  him.  But  in  a  case  in  Pennsylva 
nia,  where  the  plaintiff  was  a  carpenter  moving  to  the  State  d 
Ohio,  and  his  trunk  contained  carpenters'  tools  to  the  value  ol 
fifty-five  dollars,  which  the  jury  found  to  be  the  reasonabli? 
tools  of  a  carpenter,  it  was  held  that  he  was  entitled  to  recover 
for  them  as  baggage. 

There  is  some  diversity,  and  perhaps  some  uncertainty,  in 
the  application  of  the  rule ;  but  the  rule  itself  is  well  settled, 
and  a  reasonable  construction  and  application  of  it  must  always 
be  made  ;  and,  for  this  purpose,  the  passenger  himself,  and  all 
the  circumstances  of  the  case,  must  be  considered. 

The  purpose  of  the  rule  is  to  prevent  the  carrier  froni 
becoming  liable  by  the  fraud  of  the  passenger,  or  by  conducv. 
which  would  have  the  effect  of  fraud  ;  for  this  would  be  the 
case  if  a  passenger  should  carry  merchandise  by  way  of  baggage, 
and  thus  make  the  carrier  of  passengers  a  carrier  of  goods 
without  knowing  it  and  without  being  paid  for  it. 

Generally,  a  common  carrier  of  passengers,  by  stage,  packet, 
steamer,  or  cars,  carries  the  moderate  and  reasonable  baggage 
of  a  passenger,  without  being  paid  specifically  for  it.  But  the 
law  considers  a  payment  for  this  so  far  included  in  the  payment 
of  the  fare,  as  to  form  a  sufificient  ground  for  the  carrier's 
liability  to  the  extent  above  stated. 

The  carrier  is  only  liable  for  the  goods  or  baggage  delivered 


CARRIER'S  LIABILITY  FOR  GOODS  OF  PASSENGERS.    273 

to  him  and  placed  under  his  care.  Hence,  if  a  sender  of  goods 
send  his  own  servant  with  them,  and  intrust  them  to  him  ani 
not  to  the  carrier,  the  carrier  is  not  responsible.  So,  if  a  pas 
senger  keeps  his  baggage,  or  any  part  of  it,  on  his  person,  or  in 
his  own  hands,  or  within  his  own  sight  and  immediate  control, 
instead  of  delivering  it  to  the  carrier  or  his  servants,  the  carrier 
is  not  liable,  as  carrier,  for  any  loss  or  injury  which  may  happea 
to  it ;  that  is,  not  without  actual  default  in  the  matter.  Thu^ 
in  an  action  brought  in  New  York  to  charge  a  railroad  company, 
as  common  carriers,  for  the  loss  of  an  overcoat  belonging  to  a 
passenger,  it  appeared  that  the  coat  was  not  delivered  to  the 
defendants,  but  that  the  passenger,  having  placed  it  on  the  seat 
of  the  car  in  which  he  sat,  forgot  to  take  it  wnth  him  when  he 
left,  and  it  was  afterwards  stolen  ;  and  it  was  held  that  th*- 
defendants  were  not  liable.  But  if  the  baggage  of  a  passenge* 
is  delivered  to  a  common  carrier,  or  his  servant,  he  is  liable  fo* 
it  in  the  same  way,  and  to  the  same  extent,  as  he  is  for  gooda 
which  he  carries. 

In  this  country  the  rules  of  evidence  permit  the  traveller  to 
maintain  his  action  against  the  carrier  by  proving,  by  his  own 
testimony,  the  contents  of  a  lost  trunk  or  box,  and  their  value. 
And  the  testimony  of  the  wife  of  the  owner  is  similarly  admissi- 
ble. But  it  is  always  limited  to  such  things — in  quantity,  quality, 
kind,  and  value — as  might  reasonably  be  supposed  to  be  carried 
in  such'  a  trunk  or  valise.  The  rule,  with  this  limitation,  seems 
reasonable  and  safe,  and  is  quite  generally  adopted.  In  Massa- 
chusetts it  was  distinctly  denied  by  the  Supreme  Court,  but  was 
afterwards  established  by  statute. 

The  common  carrier  of  goods  or  of  passengers  is  liable  to 
third  parties  for  any  injury  done  to  them  by  the  negligence  or 
default  of  the  carrier,  or  of  his  servants.     And  it  would  seem 
that  he  is  liable  even  for  the  wilful  wrong-doing  of  his  servants 
if  it  was  committed  while  in  his  employ,  and  in  the  managemen 
of  the  conveyance  under  his  control,  although  the  wrong  was 
done  in  direct  opposition  to  his  express  commands.     So  he  is 
for  injury  to  property  by  the  wayside,  caused  by  his  fault.     But 
the  negligence  of  the  party  suffering  the  injury,  if  it  was  mate- 
rial and  contributed  to   the  injury,  is  a  good  defence  for  the 
carrier,  unless  malice  on  the  carrier's  part  can  be  shown. 
18 


274       ^'-^^  CARRIAGE  OF  GOODS  AND  PASSENGERS. 

Where  the  party  injured  is  in  fault,  the  common  carrier  has 
still  been  held  liable,  if  that  fault  was  made  possible  and  injurious 
through  the  fault  of  the  carrier.  If  passengers  are  carried 
gratuitously,  that  is,  without  pay,  the  common  carrier  is  still 
liable  for  injury  caused  by  his  negligence. 

Whether  a  railroad  company  is  responsible  for  fire  set  to 
buildings  or  property  along  the  road,  without  negligence  on  its 
part,  has  been  much  considered  in  this  country.  In  some  o 
our  States  they  are  made  so  liable  by  statute  provision.  And 
this  fact,  together  with  the  general  principles  of  liability  for 
injury  done,  would  seem  to  lead  to  the  conclusion  that  they  are 
not  liable,  unless  in  fault,  or  unless  made  so  by  statute. 

(89.) 

Steam  Packet  Company. 

Marks  and  Numbers. 

Received  from 

the  following  articles,  being  marked  and  numbered 
as  in  the  margin,  in  apparent  good  order,  the  cori- 
tents  and  value  unknown, 

to  be  transported  from  to  on 

one  of  the  company's  steamers,  and  to  be  delivered 
on  their  wharf  in  ,  in  like  good  order  and 

condition,  the  dangers  of  the  sea,  of  fire  on  board  or 
on  wharf,  collision,  and  all  other  accidents  excepted. 
Dated  at 

For  the  cotfipany. 

The  following  form  will  show  the  terms  and  conditions  on 
which  our  express  companies  carry  their  freight.  This  paper, 
given  and  received,  constitutes  a  contract. 


Duplicate. 


(90.) 

•Express  Company. 
fast  freight  line. 


i8 


Received  fi'om 

the  following  packages,  in  apparent  good 
order,  contents  and  value  unknown: 


FORMS  OF  COMMOX  CARRIER'S  RECEIPTS.  275 
Espress  Company. 

Advanced  Charges,  % 

RATES. 

Marked  and  numbered  as  in  the  margin, 
D"ble  I  St  Class    cts.  per  100  lbs.     to  be  fonvarded  by  railroad  and  delivered  at 

upon  payment  of  freight  therefor, 
1st  Class  cents  per  100  lbs.     as  noted  in  the  margin,  subject  to  the  condi 

tions  and  rules  on   the   back  hereof,  and 
2d   Class  cents  per  100  lbs.     those  of  the  several  railroads  over  nhic.t 

the  property  is  transported,  which  consti- 
3d    Class  cent«  per  100  lbs.     tute  a  part  of  this  contract. 

4th  Class  cents  per  100  lbs.  Agent. 

As  per  Classification  on  back. 

On  the  back  of  this  receipt  is  a  minute  and  ven,-  full  classi- 
fication of  all  articles  likely  to  be  offered  for  transportation, 
followed  by  the 

Conditions  and  Rules. 

The  destination,  name  of  the  consignee,  and  weight  of  all  articles  of 
freio-ht,  must  be  plainly  and  distinctly  marked,  or  no  responsibilit)-  w.ll  b«f 
taken  for  their  miscarriage  or  loss  ;  and  when  designed  to  be  forwarded,  alte/ 
transportation  on  the  route,  a  written  order  must  be  given,  with  the  particir 
lar  line  of  conveyance  marked  on  the  goods,  if  any  such  be  preferred  01 
desired. 

The  companies  will  not  hold  themselves  liable  for  the  safe  carriage  of 
custody  of  any  articles  of  freight,  unless  receipted  for  by  an  author!  zed  agent; 
and  no  agent  of  the  line  is  authorized  to  receive,  or  agree  to  transport,  any 
ireight,  which  is  not  thus  receipted  for. 

No  responsibility  will  be  admitted,  under  any  circumstances,  to  a  greater 
amount  upon  any  single  article  of  freight  than  $200,  unless  upon  notice  given 
of  such  amount,  and  a  special  agreement  therefor.  Specie,  drafts,  bank- 
bills,  and  other  articles  of  great  intrinsic  or  representative  value,  will  only 
be  taken  upon  a  representation  of  their  value,  and  by  a  special  agreement 
assented  to  by  the  superintendent  of  the  receiving  road. 

The  companies  will  not  hold  themselves  liable  at  all  for  injuries  to  any 
articles  of  freight  during  the  course  of  transportation,  arising  from  the 
weather,  or  accidental  delays,  or  natural  tendency  to  decay.  Nor  will  thei 
guaranty  of  special  despatch  cover  cases  of  unavoidable  or  extraordinar}- 
casualties,  or  storms,  or  delays  occasioned  by  low  water  and  ice  :  and  may  be 
stored  at  the  risk  and  expense  of  the  owner.  Nor  will  they  hold  themselves 
liable,  as  common  carriers,  for  such  articles,  after  their  arrival  at  their 
place  of  destination  at  the  company's  warehouses  or  depots. 

Carriages  and  sleighs,  eggs,  furniture,  looking-glasses,  glass  and  crockery 


276  HOTEL  KEEPERS,  INNKEEPERS,  ETC. 

ware,  machinery,  mineral  acids,  piano-fortes,  stoves  and  castings,  sweet 
potatoes,  wrought  marble,  all  liquids  put  up  in  glass  or  earthen  ware,  fruit, 
and  live  animals,  will  only  be  taken  at  the  owner's  risk  of  fracture  or  injury 
during  the  course  of  transportation,  loading  and  unloading,  unless  specially 
agreed  to  the  contrary. 

Gunpowder,  friction  matches,  and  like  combustibles,  will  not  be  received 
on  any  terms ;  and  all  persons  procuring  the  reception  of  such  freight  by 
fraud  or  concealment,  will  be  held  responsible  for  any  damage  which  may 
arise  from  it  while  in  the  custody  of  the  company. 

It  is  further  stipulated  and  agreed,  that  goods  shipped  to  points  west  oi 
shall  be  subject  to  a  change  in  classification  and  cor« 
responding  change  of  rates  beyond  those  points. 

Cases  or  packages  of  boots  and  shoes,  and  of  other  articles  liable  to 
peculation  or  fraudulent  abstraction,  must  be  strapped  w-ith  iron  or  wood,  or 
otherwise  securely  protected,  or  the  companies  will  not  be  liable  for  diminu- 
tion of  the  original  contents,  and  the  companies  will  hold  the  freighter,  in  aJl 
cases,  to  bear  the  loss  arising  from  improper  packing. 

It  is  also  agreed  between  the  parties  that  the  said  companies,  and  th^ 
railroads  and  steamboats  with  which  tliey  connect,  shall  not  be  held  account, 
able  for  any  deficiency  in  packages  if  receipted  for  to  them  in  good  order. 

All  articles  of  freight  arriving  at  their  places  of  destination  must  be  taken 
away  within  twenty-four  hours  after  being  unladen  from  the  cars, — each  con\. 
pany  reserving  the  right  of  charging  storage  on  the  same,  or  placing  the 
same  in  store  at  the  risk  and  expense  of  the  owner,  if  they  see  fit,  after  lapse 
of  that  time. 


CHAPTER    XXI. 


HOTEL  KEEPERS,  INNKEEPERS,  AND  BOARDING-HOUSE 
KEEPERS. 

Hotel  keepers  and  innkeepers  are,  in  law,  the  same.  An 
inn  has  been  judicially  defined  as  a  house  where  the  traveller  is 
provided  with  everything  which  he  has  occasion  for  while  on  his 
way.  There  need  not  be  a  sign  to  make  it  an  inn.  A  coffee* 
house  or  eating-room  is  not  an  inn,  nor  is  a  boarding-house. 

An  innkeeper  has  a  lien  upon  all  the  goods  of  a  guest,  for 
the  price  of  his  entertainment,  or  that  of  his  servants  and 
horses.  This  lien  covers  the  goods  brought  to  him  by  a  guest, 
though  they  belong  to  another  person.  Thus  he  has  a  lien  on 
a  stolen  horse  which  the  thief  brings  to  him.  But  he  has  no 
!ien  on  the  clothes  or  goods  which  a  guest  actually  has  upon  his 
person. 


HOTEL  KEEPERS,  EXNKEEPERS,  ETC.  277 

He  must  receive  every  guest  who  offers,  unless  his  house  is 
Kill,  or  there  is  good  reason  to  believe  that  the  guest  will  1  i 
disorderly.  A  guest  has  a  right  to  reasonable  accommodation', 
but  not  to  choose  his  apartment,  or  use  it  for  other  purposes 
than  those  for  which  it  was  designated.  Public  policy  imposes 
upon  an  innkeeper  a  severe  liability.  In  strict  law,  he  is  an 
insurer  of  the  jDroperty  committed  to  his  care,  against  every- 
thing but  the  act  of  God,  the  public  enemy,  or  the  fraud  cr 
neglect  of  the  guest.  But  there  seems  to  be  of  late  some 
disposition  in  the  courts  to  hold  him  thus  liable  only  where 
there  has  been  some  kind  or  measure  of  negligence  on  his  part. 

A  boarder  at  a  boarding-house  neither  holds  the  keeper  of 
the  house  to  this  liability,  nor  has  the  keeper  a  lien  on  the 
boarder's  goods.  It  is  sometimes  difficult  to  say  whether  a 
person  in  the  house  is  a  guest  at  an  inn,  or  a  boarder.  From 
all  the  cases  we  infer  this  distinction :  A  boarder  is  one  who 
tiiakes  a  bargain  for  a  certain  time.  A  guest  comes  and  goes 
vrhen  he  likes,  paying  only  for  what  he  receives.  Though  he 
scays  a  long  time  at  an  inn  or  hotel,  without  any  bargain  on 
Jrime,  he  is  still  a  guest ;  holding  the  keeper  of  the  inn  to  his 
inability,  and  having  his  goods  under  a  lien  to  the  keeper.  But, 
It  he  makes  a  bargain  on  time,  he  becomes  a  boarder,  and  the 
liability  and  lien  of  the  keeper  cease. 

It  is  a  good  defence  by  an  innkeeper  against  his  liability  for 
»  loss,  that  it  was  caused  by  a  servant  of  the  owner,  or  by  one 
•'ho  came  with  him  as  his  companion,  or  by  the  owner's  own 
lault.  It  is  also  a  good  defence  if  the  owner  retained,  personally 
and  exclusively,  the  custody  and  care  of  the  goods ;  but  it  is 
not  enough  to  make  this  defence  sufficient,  that  the  owner 
exercised  some  choice  as  to  where  his  goods  should  be  placed, 
nor  that  the  key  of  the  room  was  given  him.  But  an  innkeeper 
may  require  of  his  guest  to  place  his  goods  in  a  particular 
place,  under  lock  and  key ;  or  to  give  notice  to  guests  that  I  d 
will  not  be  responsible  for  money,  or  especially  valuable  goods, 
unless  placed  in  the  innkeeper's  safe.  If  such  precautions  are 
reasonable,  and  the  guest  neglects  them,  the  innkeeper  is  not 
liable.  Some  articles  of  this  kind  a  guest  needs  to  have  within 
his  immediate  reach ;  and   such  things  he  need  not  deposit  in 


278 


LIMITA  TIONS. 


the  safe,  and  the  innkeeper  would  be  liable  if  they  were  lost 
without  the  guest's  own  fault. 

The  innkeeper  is  liable  for  the  loss  of  the  goods  while  fairly 
in  his  custody,  though  not  specially  delivered  to  him :  as  if  lost 
while  the  innkeeper's  servant  was  carrying  them  to  an  inn,  or 
from  the  inn  to  the  cars,  or  in  a  hack  in  which  the  innkeeper 
undertook  to  carry  the  guest  "  free"  from  a  station  to  his  inn. 

Some  cases  hold  that  the  innkeeper  is  liable  for  the  loss  c£ 
goods  placed  in  an  inn  although  the  owner  does  not  himself 
lodge  or  eat  there.  But  other  cases,  and  we  think  with  better 
reason,  hold  that  the  innkeeper  is  liable  only  for  the  goods  when 
the  owner  comes  and  stays  with  them.  He  is  not  liable  per- 
manently for  goods  left  by  a  guest  who  has  gone  away.  He 
would,  however,  still  be  held  liable  for  them  for  a  reasonable 
time,  which,  in  one  case,  was  said  to  extend  over  "  some  days.'" 
For  a  guest  may  leave  for  a  reasonable  time, — which  must  not 
be  long, — with  the  purpose  of  return  ;  and  while  he  is  absent 
his  goods  are  under  the  same  responsibility  of  the  innkeeper  as 
if  the  owner  were  in  the  house. 

If  a  horse  or  carriage  is  put  into  a  distant  barn,  or  a  horse 
into  a  pasture,  by  the  innkeeper,  without  the  knowledge  or  con- 
sent of  the  owner,  the  innkeeper  is  liable  for  their  loss. 

We  hold  that  a  boarding-house  keeper  is  liable  for  loss  caused 
by  the  negligence  of  his  or  her  servants,  as  he  or  she  is  for  his 
or  her  own ;  but  not,  like  an  innkeeper,  for  a  loss  without 
negrlisrence. 


CHAPTER   XXn. 

LIMITATIONS. 


SECTION   I. 

THE   STATUTES   OF   LIMITATION'S. 

All  of  our  States  have  what  are  called  Statutes  of  Limita- 
tions. They  are  not  the  same  everywhere ;  but  they  provide 
different  periods  of  time  within  which  the  actions  specified  in 


CONSTRUCTION  OF  THE  STA  TUTE. 


279 


che  Statutes  must  be  brought.  These  periods  vary  from  twenty- 
years  to  one.  Generally,  they  are  longer  for  real  actions,  or  for 
actions  on  judgments  or  on  contracts  under  seal,  and  shorter 
for  simple  contracts  of  various  kinds.  An  abstract  of  these 
statutory  provisions  in  all  the  States  is  given  at  the  close  of  this 
chapter. 

All  actions  of  account,  and  all  which  can  be  brought  for 
indebtedness  or  damages,  and  all  actions  of  debt  grounded  upon 
any  lending,  or  contract  without  seal,  and  all  actions  for  arrear- 
ages of  rent,  must  be  commenced  and  sued  within  the  period  of 
limitation  fixed  for  bringing  such  actions  by  the  statute  law  of 
the  State  in  which  the  action  is  to  be  brought. 

In  some  States,  a  statute  provides,  in  substance,  that,  if  a 
debt  or  promise  be  once  barred  by  the  Statute  of  Limitations,. 
no  acknowledgment  of  the  debt  or  new  promise  shall  renew  the 
debt,  ard  take  away  the  effect  of  the  statute,  unless  the  new 
promise  is  in  writing,  and  is  signed  by  the  party  who  makes  the 
promise.  But  chis  statute  expressly  permits  a  part-payment 
either  of  principal  or  interest  of  the  old  debt  to  have  the  same 
effect  as  a  new  promise.  And  this  statute  also  provides,  that  if 
there  be  joint  contractors  or  debtors,  and  a  plaintiff  is  barred 
by  the  statute  against  both,  but  the  bar  of  the  statute  is 
»"emoved  as  to  one  by  a  new  promise  or  otherwise,  the  plaintiff 
may  have  judgment  against  this  one,  but  not  against  the  ether. 

Such  statutes  have  been  passed  in  Maine,  Massachusetts, 
Vermont,  New  York,  Indiana,  Michigan,  Arkansas,  and  Cali- 
fornia, and  in  most  of  the  other  States. 

SECTION  II. 

CONSTRUCTION    OF   THE   STATUTE. 

For  the  law  of  limitation  there  is  a  twofold  foundation :  in 
the  first  place,  the  actual  probability  that  a  debt  which  has  nci 
been  claimed  for  a  long  time  was  paid,  and  that  this  is  the 
reason  of  the  silence  of  the  creditor.  But,  besides  this  reason, 
there  is  the  inexpediency  and  injustice  of  permitting  a  stale 
and  neglected  claim  or  debt,  even  if  it  has  not  been  paid,  to  be 
set  up  and  enforced  after  a  long  silence  and  acquiescence. 

\ 


28o  LI  MIT  A  TIOiYS. 

Before  inquiring  into  the  rules  of  law  which  now  apply  to 
the  case  of  an  acknowledgment  or  new  promise,  it  should  be 
remarked  that  a  prescription,  or  limitation,  of  common  law, 
much  more  ancient  than  the  statutes  above  quoted,  is  still  in 
force.  This  is  the  presumption  of  payment  after  twenty  years, 
which  is  applicable  to  all  debts ;  not  only  the  simple  contracts 
to  which  the  Statutes  of  Limitation  refer,  that  is,  contracts 
which  are  merely  oral,  or  which  if  written  have  no  seal,  but  to 
specialties,  or  contracts  or  debts  imder  seal  or  by  judgment  of 
court.  Of  these  it  will  not  be  necessary  to  speak  here,  except- 
ing to  remark,  that  in  a  few  of  our  States  the  Statute  of  Limi- 
tation excepts  a  promissory  note  which  is  signed  in  the  presence 
of  an  attesting  witness,  and  is  put  in  suit  by  the  original  payee, 
or  his  executor  or  administrator;  such  a  note  in  those  States,  as 
in  Maine  and  Massachusetts,  may  be  sued  any  time  within  twenty 
years  after  it  is  due.  Bank-bills  and  other  evidences  of  debt 
issued  by  banks,  are  everywhere  excepted  from  the  operation  of 
the  statute. 

SECTION  III. 

THE    NEW    PROMISE. 

What  is  the  new  promise  which  suffices  to  take  a  case  out 
t»f  the  statute.''  A  mere  acknowledgment,  which  does  not  con- 
tain, by  any  reasonable  implication  or  construction,  a  new 
*»romise,  is  not  sufficient,  and  still  less  so  if  it  expressly 
vKcludes  a  new  promise.  In  the  leading  American  case  upon 
t.nis  point,  before  the  Supreme  Court  of  the  United  States,  it 
was  proved,  in  answer  to  the  plea  of  the  Statute  of  Limitations, 
that  the  defendant,  one  of  the  partners  of  a  firm  then  dissolved, 
said  to  the  plaintiff,  "I  know  we  are  owing  you;"  "  I  am  getting 
old,  and  I  wish  to  have  the  business  settled  :"  it  was  held  that 
these  expressions  were  insufficient  to  revive  the  debt.  So,  in 
New  Hampshire,  in  an  action  on  a  promissory  note,  the  defend- 
ant, on  being  asked  to  pay  the  note,  said  "he  guessed  the  note 
was  outlawed,  but  that  would  make  no  difference,  he  was  willing 
to  pay  his  honest  debts,  always."  As  he  did  not  state  in  direct 
terms  that  he  was  willing  to  pay  the  note,  this  was  held  not 
sufficient  to  revive  the  debt.  A  nev/  promise  is  not  now  implied 
by  the  law  itself,  from  a  mere  acknowledgment. 


7\-i  /:  T-J>A  ]  WIENT.  2  8 1 

The  new  promise  need  not  define  the  amount  of  the  debt. 
That  can  be  done  by  other  evidence,  if  only  the  existence  of 
the  debt  and  the  purpose  of  paying  it  are  acknowledged.  Still, 
the  nevv'  promise  must  be  of  the  specific  debt,  or  must  distinctly 
include  it  ;  for  if  wholly  general  and  undefined,  it  is  not  enough. 
A  testator  who  provides  for  the  payment  of  his  debts,  gen- 
erally, does  not  thereby  make  a  new  promise  as  to  any  one  of 
them. 

If  the  new  promise  is  conditional,  the  party  relying  upon  it 
must  be  prepared  to  show  that  the  condition  has  been  fulfilled. 
Thus,  if  the  new  promise  be  to  pay  "when  I  am  able,"  the  prom- 
isee must  prove  not  only  the  promise,  but  that  the  promisor  is 
able  to  pay  the  debt. 

As  the  acknowledgment-  should  be  voluntary,  it  follows  that 
one  made  under  process  of  law,  as  by  a  bankrupt,  or  by  ansv.'ers 
to  interrogatories  v/hich  could  not  be  avoided,  should  never 
have  the  effect  of  a  new  promise. 

SECTION  IV. 

PART-PAYMEXT. 

A  PART-PAYMENT  of  a  debt  is  such  a  recognition  of  it  as 
implies  a  new  promise,  even  if  it  was  made  in  goods  or  chattels, 
if  they  were  offered  as  payment,  and  agreed  to  be  received  as 
;5ayment,  or  by  negotiable  promissory  note  or  bill.  Thus,  in  a 
case  where  one  was  sued  for  money  due  for  a  quantity  of  hay, 
and  pleaded  that  it  was  barred  by  limitation,  which  was  a  good 
defence,  the  plaintiff  proved  in  reply  that  defendant  had  given 
him  within  the  limitation  a  gallon  of  gin  as  part-payment  for 
his  debt,  and  it  was  held  that  this  took  the  case  out  of  the 
Statute  of  Limitations,  and  the  plaintiff  recovered.  But  a  pay- 
ment has  this  effect  only  when  the  payment  is  made  as  of  a  part 
of  a  debt.  If  it  is  made  in  settlement  of  the  whole,  of  course 
ft  is  no  promise  of  more.  And  a  bare  payment,  without  words 
or  acts  to  indicate  its  character,  would  not  be  construed  as  car- 
rying with  it  an  acknowledgment  that  more  was  due  and  would 
be  paid. 

If  a  debtor  owes  several  debts,  and  pays  a  sum  of  money. 


282  LIMITA  TIONS. 

he  has  the  right  of  appropriating  that  money  to  one  debt  or 
another  as  he  pleases.  If  he  pays  it  without  indicating  his  own 
appropriation,  the  general  rule  is,  that  the  creditor  who  receives 
the  money  may  appropriate  it  as  he  will.  There  is,  however, 
this  exception.  If  there  be  two  or  more  debts,  some  of  which 
are  barred  by  the  statute,  and  others  are  not  barred  by  it,  the 
creditor  cannot  appropriate  the  payment  to  a  debt  that  is  barred, 
for  the  purpose  of  taking  it  out  of  the  statute  by  such  part- 
payment. 

SECTION  V. 

THE   STATUTORY   EXCEPTIONS. 

As  persons  may  have  a  right  of  action  without  being  able  to 
begin  the  action  within  the  period  required  by  the  statutes, 
because  they  are  disabled  by  infancy,  or  by  absence  from  the 
State,  or  by  unsoundness  of  mind,  or  imprisonment,  or  in  some 
States  by  being  a  married  woman,  it  is  generally  provided  in 
Ihe  statutes  that  the  limitations  there  prescribed  do  not  apply 
to  persons  so  disabled.  The  more  common  of  these  disabilities 
•\nd  the  most  universal  in  our  State  laws,  are  infancy  and 
•ibsence  from  the  State.  But  these  disabilities  must  exist 
i^-hen  the  cause  of  action  arises  to  prevent  the  statutes  of  limita- 
tion from  applying.  And  after  the  disabilities  are  removed,  the 
persons  who  have  been  disabled  may  bring  their  action  within 
certain  periods  of  time.  These  periods  are  stated  in  the 
ibstract  of  the  Statutes  of  Limitation  at  the  close  of  this 
chapter. 

The  effect  of  these  is,  that  the  disability  must  exist  when 
the  debt  accrued  ;  and  then,  so  long  as  the  disability  continues 
to  exist,  the  statute  does  not  take  effect.  But  it  is  a  general 
rule,  that,  if  the  limitation  begins  to  run,  it  goes  on  without 
any  interruption  or  suspension  from  any  subsequent  disability. 
Thus,  if  a  creditor  be  of  sound  mind,  or  a  debtor  be  at  home 
when  the  debt  accrues,  and  one  month  afterwards  the  creditor 
becomes  insane,  or  the  debtor  leaves  the  country,  nevertheless 
the  six  years  go  on,  and  after  the  end  of  that  time  no  action 
can  be  commented  for  the  debt.  Or  if  the  disability  exists 
when   the  debt    accrues,  and  some  months  afterwards  ceases. 


WHEN  THE  PERIOD  OF  LIMITATION  BEGINS.       283 

SO  that  the  limitation  begins  to  run  when  it  ceases,  and  after- 
wards the  disability  comes  again,  it  does  not  interrupt  the 
limitation. 

If,  when  a  debt  is  due,  the  debtor  is  out  of  the  State,  the 
limitation  does  not  begin  to  run.  If  afterwards  he  returns  to 
the  State,  it  then  begins  to  run,  and,  having  begun,  it  continues 
to  run,  in  most  of  the  States,  although  he  goes  out  of  the  State 
again,  and  returns  no  more. 

In  this  country,  a  rational  construction  has  been  given  to  the 
disability  of  being  out  of  the  State,  and  its  removal ;  and  it  is 
not  understood  to  be  terminated  merely  by  a  return  of  the 
debtor  for  a  few  days,  if  during  those  days  he  was  not  within 
reach.  If,  however,  the  creditor  knew  that  he  had  returned,  or 
might  have  known  it  by  the  exercise  of  reasonable  care  and 
diligence,  soon  enough  to  have  profited  by  it,  this  removal  of 
the  disability  brings  the  statute  into  operation,  although  the 
return  was  for  a  short  time  only. 

SECTION   VI. 

WHEN     THE     PERIOD     OF     LIMITATION     BEGINS. 

It  is  sometimes  a  question  from  what  point  of  time  the  limi- 
tation must  be  counted.  And  the  general  rule  is,  that  it 
begins  when  the  action  might  have  been  commenced.  If  a 
credit  is  given,  this  period  does  not  begin  until  the  credit  has 
expired.  If  a  note  on  time  be  given,  the  limitation  does  not 
begin  until  the  time  has  expired,  including  the  additional  three 
days'  grace ;  if  a  bill  of  exchange  be  given,  payable  at  sight, 
then  the  limitation  begins  after  presentment  and  demand  ;  but 
if  a  note  be  payable  on  demand,  or  money  is  payable  on  de- 
mand, then  the  limitation  begins  at  once,  because  there  may  be 
an  action  at  once.  If  there  can  be  no  action  until  a  previous 
demand,  the  limitation  begins  as  soon  as  the  demand  is  made. 
If  money  be  payable  on  the  happening  of  any  event,  then  the 
limitation  begins  after  that  event  has  happened.  If  several 
successive  credits  are  given,  as  if  a  note  is  given  which  is  to  be 
renewed ;  or  if  a  credit  is  given,  and  then  a  note  is  to  be  given  ; 
or  if  the  credit  is  longer  or  shorter,  at  the  purchaser's  option, 
as  if  it  be  agreed  that  a  note  shall  be  given  at  two  or  four 


2S4  LIMITATIONS. 

months,  then  the  limitation   begins  when  the  whole  credit  or 
the  longer  credit  has  expired. 

SECTION   VII. 

THE  STATUTE  DOES  NOT  AFFECT  COLLATERAL  SECURITY. 

It  is  important  to  remember  that  the  Statute  of  Limitations 
does  not  avoid  or  cancel  the  debt,  but  only  provides  that  "  no 
action  shall  be  maintained  upon  it "  after  a  given  time.  There- 
fore, it  does  not  follow  that  no  right  can  be  sustained  by  the 
debt,  although  the  debt  cannot  be  sued.  Thus,  if  one  who 
holds  a  common  note  of  hand  on  which  there  is  a  mortgage  or 
pledge  of  real  or  of  personal  property,  without  valid  excuse 
neglects  to  sue  the  note  until  after  the  limitation,  he  can  never 
bring  an  action  upon  that  note  ;  but  the  pledge  or  mortgage  is 
as  valid  and  effectual  as  it  was  before  ;  and,  as  far  as  it  goes, 
his  debt  is  secure  ;  and  for  the  purpose  of  realizing  this  secu- 
rity, by  foreclosing  a  mortgage,  for  example,  he  may  have 
whatever  process  is  necessary,  although  he  cannot  sue  the  note 
itself.  And  the  debtor  cannot  redeem  the  property  pledged 
or  mortgaged  except  by  payment  of  the  debt. 

ABSTRACT  OF  THE  STATUTES  OF   LIMITATIONS. 

ALABAMA. — Judgments  of  courts  of  records,  Hvetity years.  Actions  to  recover 
real  property,  contracts  or  writings  under  seal,  actions  against  sheriffs,  coroners, 
constables,  and  other  public  officers,  for  malfeasance  in  office,  ten  years.  Trespass 
to  the  person  or  real  or  personal  property,  detention  or  conversion  of  personal  property, 
all  promises  and  writings  not  under  seal,  actions  for  recovery  of  loan  or  on  an  account 
stated,  actions  for  the  use  and  occupation  of  land,  actions  against  sureties  of  public 
officers,  and  sureties  of  executors,  administrators,  and  guardians,  and  judgments  of 
justices  of  the  peace,  and  actions  on  simple  contract  or  specialty  not  specifically 
enumerated,  jzjr^^dtrj-.  Certain  actions  on  equities  of  redemption  in  lands  sold  by 
decree  of  court, y?z/^  years.  Actions  against  surety  to  writ  of  error,  appeal  bond,  etc. ,  or 
except  on  those  given  in  courts  of  the  State,  four  years.  Actions  on  open  or  unliqui- 
dated account  to  be  computed  from  date  of  last  item,  or  time  when  account  was  due, 
three  years.  Actions  by  personal  representative  for  death  of  testator  or  intestate, 
two  years.  Malicious  prosecutions,  criminal  conversation,  seduction,  breach  of 
promise,  and  libel  and  slander,  actions  for  statutory  penalties,  actions  for  damages 
for  personal  injury  or  death  of  a  minor  under  statute,  all  other  actions  for  injury 
to  person  or  rights  not  arising  from  contract,  07ie  year.  Persons  under  disability 
have  three  years  after  the  removal  of  the  same  in  which  to  sue  or  defend,  but  action 
must  be  brought  within  tzuenty  years.     Period  of  defendant's  absence  from  the  State 


ABSTRACT  OF  STATUTES   OF  LIMITATIONS.        285 

is  not  included.      Tart  payment  or  unconditional  promise  in  writing;  only  will  revive 
cause  of  action. 

ARIZONA. — Actions  on  debt  evidenced  by  contract  in  writing  made  in  the 
Territor),  _//'zr_jr;?/-JV  actions  on  bond  to  convey  real  estate  —  partnership  accounts, 
current  accounts  between  merchants  dating  from  cessation  of  dealings,  on  bonds  of 
executors,  administrators,  and  guardians,  from  date  of  discharge,  death,  or  resigna- 
tion, four  years;  actions  to  recover  real  estate,  for  debts  not  evidenced  by  written 
contract,  on  stated  or  open  accounts  (except  those  between  merchants,  their  factors 
or  agents)  three  years ;  actions  for  the  recovery  of  real  estate  founded  on  possession, 
trespass,  injuries  to  property  or  detention  of  personal  property,  conversion,  trover, 
judgments  rendered  without  the  Territoiy  or  any  instrument  in  writing  executed 
w  ithout  the  Territory,  to  be  computed  from  lime  of  defendant's  arrival  in  the  Terri- 
tory, izvo  years;  actions  for  personal  injuries,  malicious  prosecution,  false  imprison- 
ment, libel,  slander,  seduction,  breach  of  promise  and  damages  for  death,  one  year. 
Limitation  ceases  during  absence.  New  acknowledgment  or  promise  must  be  in 
writing. 

ARKANSAS.— Actions  to  recover  real  property,  seven  years.  But  persons 
under  legal  disabilities  may  bring  their  action  within  three  years  after  the  removal  of 
such  disability.  Judgments,  bonds,  and  writings  under  seal,  ten  years.  Actions  on 
bonds  of  executors  and  administrators,  ei^ht  years;  on  official  bonds  of  sheriffs, 
coroners,  and  constables,  four  years.  Promissory  notes  and  other  instruments  in 
writing,  not  under  seal,  five  years.  Contracts  not  in  writing,  trespass  on  lands, 
libels  and  actions  for  taking  or  injuring  goods  and  chattels,  three  years.  Actions 
against  sheriffs  and  coroners  except  for  escape,  tzco  years.  Actions  for  criminal 
conversation,  assault  and  battery,  false  imprisonment,  slander,  actions  against  sheriffs 
for  escape,  one  year;  all  other  causes  of  action,  five  years.  In  all  cases  except  actions 
to  recover  real  property,  the  limitation  in  regard  to  persons  under  disabilities  begins 
to  run  from  the  removal  of  the  same.  In  actions  on  an  account  current,  the  cause 
of  action  accrues  from  the  last  item  proved  in  the  account.  Any  new  promise  must 
be  in  writing,  and  signed  by  the  party  to  be  charged.  Actions  which  survive  may  be 
brought  by  and  against  executors  and  administrators  within  one  year  from  the  death 
of  the  party,  or  the  granting  letters  testamentary  or  of  administration.  Any  action 
failing  for  any  cause  nut  affecting  the  ri^ht  of  action  may  be  recommenced  within 
one  year  after  such  failure. 

CALIFORNIA. — Actions  to  recover  real  property  or  mesne  profits  of  the  same, 
five  years.  Judgments  of  courts  of  record,  five  years.  On  contracts,  obligations, 
or  liabilities  founded  on  an  instrument  in  writing  executed  in  the  State,  four  years. 
Actions  on  statute  liabilities,  other  than  penalties  and  forfeitures,  trespass  on  real 
estate,  trover,  detinue,  and  replevin,  actions  in  case  of  fraud,  the  time  beginning  to 
run  from  discovery  of  the  same,  three  years.  Contracts  not  in  writing  or  on  written 
instruments  executed  out  of  the  State,  actions  against  sheriffs,  coroners,  and  con- 
i;tab!e3,  for  acts  done  in  official  capacity,  except  for  escapes,  and  actions  for  the  death 
of  one  caused  by  the  wrongful  act  or  neglect  of  another,  two  years.  Actions  for 
statute   penalties  or  forfeitures  or  for  an   undertaking  in  a  criminal  action,  libel, 


286  LIMITA  TIONS, 

slander,  assault,  battery,  false  imprisonment,  seduction,  actions  against  sheriffs  and 
constables  for  escapes,  action  against  a  municipal  corporation  for  damages  caused 
by  a  mob  or  riot,  one  year.  Action  for  property  seized  by  tax  collector,  six  months. 
All  other  actions  must  be  commenced  within  four  years.  There  is  no  limitation  to 
actions  against  a  bank  or  trust  company  for  the  recovery  of  deposits.  In  actions  on 
mutual,  open,  and  current  accounts,  the  cause  of  action  is  deemed  to  have  accrued 
from  the  last  item  proved  on  either  side.  The  time  of  limitation  is  not  to  run  against 
persons  out  of  the  State.  The  limitation  in  case  of  persons  under  disabilities  at  the 
time  of  accrual  of  right  begins  to  run  from  the  removal  of  the  same.  New  promise 
to  revive  action  must  be  in  writing. 

COLORADO. — Actions  on  contracts,  express  or  implied,  judgments  of  courts  not 
of  record,  rents,  waste,  trespass  on  real  estate,  taking  or  detaining  personal  property, 
six  years.  Assault  and  battery,  false  imprisonment,  slander,  and  libel,  and  actions 
against  sheriffs  and  coroners  as  such,  except  for  escape,  one  year.  Actions  against 
sheriffs  for  escape,  six  months;  all  other  personal  actions,  three  years.  Limitations 
in  case  of  persons  under  disabilities  begin  to  run  from  the  time  of  removal  of  the 
same.  When  the  cause  of  action  accrued  out  of  the  State  on  a  contract,  judgment 
or  sealed  instrument,  the  action  must  be  brought  within  six  years  of  the  time  it 
accrued. 

CONNECTICUT. — Actions  to  recover  real  ^ro^Qriy,Jif teen  years.  But  persons 
under  legal  disabilities  may  bring  such  action  -within  Jive  years  after  removal  of  the 
disability.  Suits  on  contracts  under  seal  and  promissory  notes  not  negotiable, 
seventeen  years ;  and  persons  under  disabilities,  within  four  years  after  removal  of 
the  same.  Actions  on  all  simple  contracts,  book  debts,  debt  on  simple  contract, 
contracts  in  writing  not  under  seal,  except  notes  not  negotiable,  six  years.  Persons 
under  disabilities,  three  years  after  removal  of  the  same.  In  cases  of  settlement  of 
partnership,  or  joint  occupany  of  real  or  personal  estate  or  joint  accounts,  courts  will 
take  into  consideration  all  the  joint  transactions  since  the  time  of  the  last  settlement, 
though  more  than  six  years  have  elapsed  since  said  settlement.  Except  the  cases 
mentioned  above,  an  action  founded  on  any  express  contract  or  agreement  not 
reduced  to  writing,  actions  of  trespass,  or  slander,  must  be  brought  within  three 
years.  Scire  /acias  against  garnishee,  one  year.  Actions  for  damages  for  loss  of 
life  from  negligence  one  year  from  the  date  of  the  negligence  complained  of.  Any 
action  properly  begun,  and  failing  for  a  cause  not  affecting  the  right  of  action,  may 
be  recommenced  within  one  year  after  such  failure,  except  actions  against  executors 
and  administrators,  which  may  be  begun  again  within  six  months.  When  cause  of 
action  is  fraudulently  concealed,  the  limitation  shall  begin  to  run  from  discovery  of 
the  right  of  action  by  the  person  entitled. 

DELAWARE. — Real  actions,  actions  on  sealed  instruments  and  judgments, 
twenty  years;  but  persons  under  disabilities  may  bring  a  real  action  within  ten  years 
from  removal  of  the  same.  On  official  bonds  of  sheriffs,  executors,  and  administra- 
tors, and  actions  on  promissory  notes,  bills,  and  acknowledgments  in  writing,  six 
years.     On  guardian's  bonds,  three  years  from  determination  of  guardianship. 


ABSTRACT  OF  STATUTES  OF  LIMITATIONS.        287 

Trespass,  replevin,  detinue,  debt  others  than  specialty,  account,  assumpsit,  and  case, 
three  years.  Time  of  defendant's  absence  from  the  State  is  not  included.  In  mutual 
and  running  accounts,  the  limitation  does  not  begin  to  run  while  the  account  is  open. 
Persons  under  disabilities  may  begin  personal  actions  within  three  years  after  removal 
of  disability. 

DISTEICT  OF  COLUMBIA.— Actions  on  bill,  bond,  judgment,  or  other 
specialty,  twelve  years.  Persons  under  disability,  five  years  after  removal  of  the 
same.  Actions  upon  simple  contracts,  including  bills  of  exchange  and  notes  not 
under  seal,  book  debt  or  account,  debt,  detinue  and  replevin  and  trespass  to  real 
estate,  three  years.  Slander,  trespass,  assault  and  battery,  wounding,  and  imprison- 
ment, one  year.  Persons  under  disability  have  the  same  time  after  removal  of  the 
same. 

FLORIDA. — Real  actions,  seven  years.  Domestic  judgments  and  writings  under 
seal,  tiventy  years.  Foreign  judgments,  seven  years.  Writings  not  under  seal, 
five  years.  Statute  liabilities  other  than  penalties  and  forfeitures,  trespass  on  real 
property,  trover,  detinue,  and  replevin,  and  contracts  not  in  writing,  except  an  open 
account  for  goods,  wares,  and  merchandise,  three  years.  Statute  penalties  and 
forfeitures,  libel,  slander,  assault,  battery,  false  imprisonment,  and  actions  on  open 
accounts,  two  years.  Action  for  articles  charged  in  a  store  account  and  those  for 
relief  for  causes  other  than  those  above  mentioned,  four  years.  In  actions  to  recover 
a  balance  due  on  mutual,  open,  and  current  accounts,  the  cause  of  action  is  deemed 
to  have  accrued  from  the  date  of  the  last  item  proved  on  either  side.  New  promise 
must  be  in  writing. 

GEORGIA. — Actions  to  recover  real  property,  tioenty  years;  foreign  judgments, 
five  years;  domestic  judgments,  seven  years.  Sealed  instruments,  and  actions  to 
enforce  rights  accruing  under  statutes,  acts  of  incorporation  or  by  operation  of  law, 
twenty  years;  contracts  in  writing,  including  bills  and  notes,  six  years;  open  accounts 
and  contracts  not  in  writing,  trespass  on  realty,  or  personalty,  fiour  years;  injuries 
to  person,  except  libel  and  slander,  two  years;  libel  and  slander,  one  year.  Limita- 
tions in  case  of  persons  under  disabilities  begin  to  run  from  the  removal  of  the  same. 
Any  new  promise  must  be  in  writing. 

IDAHO. — Vs.&2\^c'i\ovi%,  five  years.  Judgments  and  actions  for  mesne  profits  of 
real  estate,  six  years.  Contracts  and  obligations  in  \yx\'C\n^,  five  years;  those  not  in 
writing,  four  years.  Statute  liabilities  other  than  penalties  and  forfeitures,  trespass 
on  real  estate,  taking,  detaining,  or  injuring  goods  and  chattels,  and  actions  for  relief 
on  the  ground  of  fraud  or  mistake,  three  years.  Actions  against  officers  for  seizing, 
detaining,  or  injuring  property,  actions  for  penalty  or  forfeiture,  on  a  statute  or 
undertaking  in  a  criminal  case,  to  recover  damages  for  death,  for  libel,  slander, 
assault  and  battery,  false  imprisonment,  seduction  or  escape,  one  year.  A  cause 
of  action  barred  in  the  State  or  Territory  where  it  arose  is  barred  here. 

ILLINOIS. — Actions  to  recover  real  property,  twenty  years;  but  seven  years 
residence  with  connected  record  title,  or  seven  years'  actual  possession  under  claim 
and  color  of  title  and  payment  of  all  taxes  legally  assessed,  or  in  the  case  of  unoccu- 


288  LIMITA  TIONS. 

pied  land,  seven  years,  payment  of  taxes  made  in  good  faith  under  claim  and  color  of 
title,  constitutes  ownership  to  the  extent  of  the  paper  title.  Bonds,  promissory- 
notes,  bills,  written  leases,  written  contracts,  and  other  indebtedness  in  writing,  and 
suits  for  foreclosure  of  mortgages,  ten  yeai-s.  Unwritten  contracts,  awards  of 
arbitration,  damages  to  real  or  personal  property,  detinue,  and  trover,  and  all  civil 
actions  not  otherwise  provided  for,  five  years.  Injuries  to  person,  false  imprison- 
ment, malicious  prosecution,  statutory  penalties,  abduction,  and  seduction,  two  years. 
Slander  and  libel,  one  year.  Actions  against  the  representatives  of  deceased  persons, 
two  years  from  issuing  letters  testamentary  or  of  administration.  Persons  under 
disabilities  may  bring  real  or  personal  actions  within  two  years  from  the  removal  of 
the  same.  If  any  person,  liable  to  an  action,  conceals  the  same,  action  may  be 
begun  within  five  years  after  the  discovery.  Any  action  defeated  for  any  cause  not 
affecting  the  right  of  action  may  be  begun  again  within  one  year  from  such  defeat. 
New  promise  must  be  in  writing.  The  time  of  debtor's  absence  from  the  State  is 
not  included  in  the  period  of  limitation. 

INDIANA, — Real  actions,  judgments  of  a  court  of  record  and  contracts  in 
writing,  other  than  those  for  the  payment  of  money,  tiventy  years.  Promissory 
notes,  bills  of  exchange,  and  other  written  contracts  for  the  payment  of  money,  ten 
years.  Accounts  and  contracts  not  in  writing,  use,  rents,  and  profits,  of  real  estate, 
injuries  to  property,  trover,  replevin,  actions  for  relief  aginst  fraud,  and  for  money 
collected  by  a  public  officer,  six  years.  Injuries  to  person  or  character,  statutory 
penalties,  and  indentures  of  apprenticeship,  two  years.  Actions  for  the  recovery  of 
real  property  sold  on  execution,  brought  by  the  debtor  or  any  person  claiming  under 
him,  by  title  acquired  after  judgment,  ten  years  from  sale;  for  real  property  sold  by 
executors,  etc.,  on  a  judgment,  by  a  party  to  the  judgment  or  persons  claiming 
under  him,  subsequent  to  the  judgment,  five  years  after  confirmation  of  sale.  Actions 
not  specially  limited  by  statute,  fifteen  years.  Time  of  debtor's  absence  from  the 
State  not  included.  In  mutual,  open,  and  current  accounts,  the  cause  of  action  is 
deemed  to  have  accrued  from  date  of  last  item  proved.  Persons  under  disabilities  at 
the  time  of  accrual  of  right  may  bring  their  action  within  two  years  after  removal.  An 
action  failing  for  a  cause  not  affecting  the  right  other  than  plaintiff's  negligence,  may 
be  recommenced  \i\1\)Sxi  five  years.     New  promise  must  be  in  writing. 

IOWA. — Judgments  of  court  of  record,  twenty  years.  Real  actions,  judgments 
other  than  of  courts  of  record  and  written  contracts,  ten  years.  Contracts  not  in  writ- 
ing, and  injuries  to  property,  fraud,  and  all  other  actions  not  otherwise  provided  for, 
five  years.  Actions  against  sheriffs  and  public  officers,  three  years;  injuries  to  person 
or  reputation,  and  statute  penalties,  two  years.  In  open  accounts,  the  cause  of  action 
accrues  from  the  date  of  the  last  item  proved.  Persons  under  disabilities  may  begin 
action  within  one  year  from  the  removal  of  the  same.  New  promise  or  acknowledg- 
ment must  be  in  writing.  Period  of  debtor's  non-residence  in  the  State  not  included, 
but  actions  barred  where  debtor  has  previously  resided,  are  barred  here. 

KANSAS. — Actions  for  recovery  of  land  sold  on  execution,  or  by  administrators, 
etc.,  by  order  of  court,  or  for  taxes,  five  years  from  the  recording  of  the  deed,  other 
real  a.ct\ons,  fifteen  years;  but  persons  under  disabilities  may  bring  action  within  two 


ABSTRACT  OF  STATUTES  OF  LIMITATIONS. 


209 


yea7-s  after  removal.  Contracts  and  agreements  in  writing,  and  actions  on  bonds  of 
executors,  etc.,  _/?!7£'_jvrtrj-.  Contracts  not  in  writing,  and  statutory  liabilities,  other 
than  penalties  or  forfeitures,  three  years.  Trespass  on  real  property,  actions  for 
taking,  detaining,  or  injuring  personal  property,  relief  from  fraud  and  injuries  to 
rights  arising  on  contract  and  not  herein  enumerated,  two  years.  Libel,  slander, 
assault  and  battery,  malicious  prosecution,  false  imprisonment,  penalties,  and  for- 
feitures, one  year.  Time  of  debtor's  absence  from  the  State  not  included,  and  causes 
of  action  arising  in  another  State,  and  barred  there,  are  barred  here  also.  Persons 
under  disabilities  may  begin  personal  action  within  one  year  after  removal  thereof. 
After  failure  of  an  action  for  any  cause  not  affecting  the  right  of  action,  new  action 
may  be  begun  within  one  year.  Acknowledgment  of  a  debt  barred  must  be  in 
writing. 

KENTUCKY, — Real  actions,  yf/V^'^M  ;i'^(7rj/  but  seven  years'  occupation  under 
connected  record  title  is  a  bar.  Persons  under  disabilities  at  the  time  of  the  accrual 
of  such  right  may  bring  an  action  within  three  years  after  the  removal  of  the  same, 
provided  the  whole  time  is  not  extended  beyond  thirty  years.  Actions  on  judgments, 
bonds,  and  written  contracts,  fifteen  years.  Contracts  not  in  writing,  statute  liabili- 
ties, penalties  and  forfeitures,  trespass  on  real  and  personal  property,  trover,  detinue, 
replevin,  bills,  notes,  and  checks,  and  accounts  between  merchant  arid  merchant, 
relief  from  fraud,  and  any  action  for  injury  to  plaintiff's  rights  not  arising  on  con- 
tract and  not  specially  ^nxLm&xsX&A,  five  years.  Merchants'  accounts  for  goods  sold, 
or  charged  in  store  account,  two  years  from  first  day  of  January,  after  delivery. 
Injuries  to  person,  criminal  conversation,  breach  of  promise,  seduction,  malicious 
prosecution,  conspiracy,  libel  and  slander,  otie  year.  In  case  of  persons  under 
disabilities,  limitation  begins  to  run  from  the  removal  of  the  same.  Executors  and 
administrators  may  bring  actions  which  survive  one  year  after  death  of  party  entitled. 

LOUISIANA. — Prescription  against  immovables,  ten  years  under  title,  and  in 
good  faith,  twenty  years  under  title,  whether  in  good  faith  or  not,  thirty  years  with- 
out reference  to  title  or  good  faith.  Against  movables,  three  years  in  good  faith  and 
under  title,  ten  years  without  reference  to  title  or  good  faith.  Actions  on  judgments 
for  money  and  stated  accounts,  and  all  personal  actions  not  specially  provided  foi , 
ten  years.  Bills  and  notes,  five  years.  Arrearages  of  rent,  money  lent,  accounts 
of  merchants,  annuities,  alimony,  salaries  of  clerks,  physicians,  apothecaries,  sur- 
geons, sheriffs,  and  attorneys'  accounts,  three  years.  Libel  and  slander,  and  actions 
by  workmen,  etc.,  for  wages,  and  by  innkeepers  for  lodging  and  board,  freight  of 
vessels  and  wages  of  crew,  one  year.  Prescription  does  not  run  against  minors  and 
persons  under  interdiction  unless  specified  by  law. 

MAINE. — Judgments  of  courts  of  record,  t-wenty  years.  Real  actions,  twenty 
years;  persons  under  disabilities,  twenty  years  from  removal  of  same,  provided  the 
whole  time  is  not  extended  beyond  forty  years.  Witnessed  promissory  notes  and 
bank  bills,  twenty  years.  Debt  on  contract,  and  liabilities  not  under  seal,  judgments 
not  of  record,  arrears  of  rent,  assumpsit,  and  all  actions  on  the  case,  waste,  trespass, 
replevin,  trover,  and  detinue,  six  years.  Assault  and  battery,  false  imprisonment, 
libel  and  slander,  two  years;  escape,  scire  facias  against  bail  and  trustees,  one  year, 
19 


290 


LIMITA  TIONS. 


all  other  personal  actions,  twenty  years.  On  mutual  and  current  accounts,  action 
accrues  from  the  last  item  proved.  Limitation  in  case  of  persons  under  disabilities 
begins  to  run  from  removal  of  the  same.  After  failure  of  action  for  any  cause  not 
affecting  the  right,  a  new  action  may  be  begun  within  six  vionths.  An  acknowledg- 
ment must  be  express  and  in  writing  to  revive  a  debt.  Time  of  debtor's  absence 
from  the  State  is  not  included  in  period  of  limitation. 

MARYLAND. —  Tiventy  years  %\\^%  \S.\\^  x.o\2SiA.  Actions  on  judgments,  recog- 
nizances, specialties,  tiuelve  years,  and  six  years  after  removal  of  disabilities.  Bonds 
of  executors  and  administrators,  and  other  officers  except  sheriffs,  coroners,  and 
constables,  twelve  years.  Sheriffs',  coroners',  and  constables'  bonds,  Jive  years 
from  the  date  of  the  bond.  Actions  of  account,  assumpsit,  or  on  the  case,  debt  on 
simple  contract,  for  rent  in  arrear,  detinue,  and  replevin,  trespass  for  injuries  to  real 
or  personal  property,  illegal  arrest  or  false  imprisonment,  three  years.  Slander  and 
trespass  to  person,  oiie  year.  In  case  of  persons  under  disabilities,  limitation  begins 
to  run  from  the  removal  of  the  same. 

MASSACHUSETTS. — Real  actions,  twenty  years.  Witnessed  promissory 
notes  by  original  payee,  and  bills  and  notes  of  a  bank,  twenty  years.  Contracts  not 
under  seal,  actions  for  arrears  of  rent,  except  upon  leases  under  seal,  replevin,  and 
all  other  actions  for  taking,  detaining,  or  injuring  goods  or  chattels,  and  tort,  except 
as  hereafter  specified,  j/xj<?ar J.  Assault  and  battery,  false  imprisonment,  slander, 
and  libel,  two  years.  Actions  against  executors,  trustees,  sheriffs,  etc.,  for  taking 
personal  property,  two  years.  Actions  for  penalties  on  forfeitures  by  person  to  whom 
penalty  is  given,  one  year.  On  mutual  and  open  account  current,  cause  of  action  is 
deemed  to  have  accrued  at  the  time  of  the  last  item  proved.  Persons  under  disabili- 
ties may  bring  their  action  within  the  time  limited  after  the  removal  of  such  disabili- 
ties. Limitations  do  not  run  against  persons  out  of  State.  Actions  by  and  against 
an  executor  or  administrator  of  a  deceased  person  within  two  years  from  granting 
letters  testamentary  or  of  administration.  After  failure  of  an  action  for  any  cause 
not  affecting  the  right  of  action,  a  new  action  may  be  begun  within  one  year.  New 
promise  must  be  in  writing.  All  other  actions  not  otherwise  limited,  including  those 
on  judgments  of  courts  of  record,  twenty  years. 

MICHIGAN. — Real  actions  where  defendant  claims  title  through  deed  made 
upon  sale  by  executor,  sheriff,  etc.,  under  order  of  court,  Jve  years;  where  he 
claims  title  under  deed  made  on  tax  sale,  ten  years;  in  all  other  cases,  fifteen  years, 
except  when  party  entitled  was  absent  from  the  United  States,  and  not  in  British 
Provinces  when  right  of  action  accrued,  and  in  that  case,  twenty  years.  Judgments 
of  courts  of  record,  ten  years.  Actions  of  debt  upon  contracts  not  under  seal,  judg- 
ments not  of  record,  actions  for  arrears  of  rent,  assumpsit,  or  case  founded  on  any 
contract  or  liability,  waste,  replevin,  and  trover,  and  all  other  actions  for  taking, 
detaining,  or  injuring  goods  or  chattels,  and  for  all  actions  on  the  case  except  slan- 
der and  libel,  six  years.  Actions  against  sheriffs  for  misconduct  of  deputies,  three 
years.  Trespass  on  land,  assault  and  battery,  false  imprisonment,  libel  and  slander, 
t7i'o  years.  In  actions  on  an  account  current,  the  cause  of  action  is  deemed  to  have 
accrued  from  the  date  of  the  last  item  proved  in  the  account.     Limitations  in  the 


ABSTRACT  OF  STATUTES   OF  LIMFTATIONS.        201 

x  case  of  persons  under  disabilities  begin  to  run  from  the  removal  of  the  same.  In  case 
of  death,  actions  which  survive  may  be  brought  by  or  against  executors  and  adnunis- 
trators  within  two  years  after  granting  letters  testamentary  or  of  administration. 
After  an  action  fails  for  any  cause  not  affecting  the  right,  a  new  action  may  be  begun 
within  one  year.  Time  of  defendant's  absence  from  the  State  is  not  included  in 
limitation. 

MINNESOTA. — Real  actions,  txoenty  years;  after  January  i,  1891,  fifteen 
years.  On  judgments  of  courts  of  record,  ten  years.  Contracts,  statutory  liability, 
trespass  on  real  estate,  actions  for  taking,  detaining,  or  injuring  personal  property, 
replevin,  injuries  to  the  person  or  rights  of  another  not  arising  on  obligation,  and 
actions  for  relief  from  fraud,  dating  from  the  time  of  the  discovery  of  the  same,  six 
years.  Actions  against  sheriffs,  coroners,  and  constables,  as  such,  three  years. 
Libel,  slander,  assault,  battery,  and  false  imprisonment,  tivo  years.  Time  of  defend- 
ant's absence  from  the  State  is  not  included.  On  mutual  and  current  accounts,  the 
cause  of  action  accrues  from  the  date  of  the  last  item  proved  on  either  side.  Persons 
under  disabilities  other  than  infancy,  within  one  year  after  removal  of  the  same,  pro- 
vided the  original  limitation  is  not  extended  more  XSxzvl  five  years ,  and  infants  within 
one  year  after  coming  of  age.  After  the  failure  of  any  action  for  a  cause  not  affecting 
the  right,  a  new  action  may  be  begun  within  one  year.  Any  new  promise  must  be  in 
writing. 

MISSISSIPPI. — Real  actions,  ten  years.  On  judgments  rendered  in  another 
State  against  a  citizen  of  this  State,  three  years,  other  judgments,  seven  years. 
Actions  on  a  promissory  note,  bill  of  exchange,  or  other  contract  in  writing,  waste 
and  trespass  on  real  estate,  detinue,  trover,  or  other  action  for  the  recovery  of  per- 
sonal property,  or  damages  for  its  conversion,  six  years.  Actions  on  open  account 
and  verbal  contracts,  three  years.  Assault,  battery,  maiming,  false  imprisonment, 
malicious  arrest,  slander,  and  libel,  one  year.  In  case  of  persons  under  disabilities, 
limitations  begin  to  run  from  the  removal  of  the  same.  Actions  by  and  against 
executors  and  administrators  within  one  year  from  the  date  of  the  letters  testamentary 
or  of  administration.  After  the  failure  of  any  action  for  a  cause  not  affecting  the 
right  of  action,  a  new  action  may  be  begun  vvithin  one  year.  Any  new  promise  or 
acknowledgment  must  be  in  writing.  \Vhen  the  right  to  recover  on  a  debt  secured 
by  mortgage  is  barred,  the  remedy  on  the  mortgage  is  also  barred. 

MISSOURI. — Real  actions,  ten  years.  Persons  under  disabilities,  three  years 
from  the  removal  of  the  same,  provided  the  limitation  is  not  extended  more  than 
twenty-four  years  from  the  original  accrual  of  the  right.  Writings,  sealed  or 
unsealed,  for  the  payment  of  money  or  property,  actions  on  covenants  in  deeds,  and 
actions  for  relief  not  otherwise  provided  for,  ten  years.  Judgments  are  presumed  to 
be  satisfied  in  tiventy  years.  Actions  on  contracts  not  in  writing,  express  or  implied, 
on  open  accounts,  statutory  liabilities,  injur}'  to  the  person  or  to  personal  property, 
actions  for  relief  on  ground  of  fraud,  trespass  on  real  estate,  trover,  detinue,  and 
replevin,  five  years.  Actions  against  sheriffs,  coroners,  or  other  officers,  in  their 
official  capacity,  statutory  penalties,  three  years.  Libel,  slander,  assault,  battery, 
false  imprisonment,  and  criminal  conversation,  two  years.  Limitations  in  case  of 
persons  under  disabilities  begin  to  run  from  the  removal  of  the  same.     Any  action 


292 


LI  MIT  A  TIONS. 


failing  for  a  cause  not  affecting  the  right  of  action  may  be  brought  anew  within  one 
year  after  such  failure.  Any  new  promise  must  be  in  writing.  The  time  of  defend- 
ant's absence  from  the  State  without  leaving  a  family  or  place  of  abode  in  the  State 
is  not  included  in  the  period  of  limitation. 

MONTANA. — Real  actions,  eighteen  years.  Judgments  and  contracts  in  writ- 
ing, ten  years.  Actions  on  contracts  not  in  writing,  express  or  implied,  five  years. 
Actions  for  relief  not  specially  enumerated,  three  years.  Waste  or  trespass  on  real 
estate,  statute  liabilities  other  than  penalties  or  forfeitures,  taking,  detaining,  or 
injuring  goods  or  chattels,  actions  for  the  specific  recovery  of  personal  property, 
relief  on  ground  of  fraud,  dating  from  the  discovery  thereof,  and  actions  against  a 
sheriff,  coroner,  or  constable,  t'wo  years.  Actions  for  statute  penalties,  libel,  assault 
and  battery,  and  false  imprisonment,  one  year.  There  is  no  limit  for  the  recovery  of 
deposits  from  banks,  etc.  Time  of  defendant's  absence  from  the  Territory  is  not 
included  in  limitation.  New  acknowledgment  or  promise  must  be  in  writing.  A 
cause  of  action  barred  by  the  laws  of  the  State  or  Territory  where  it  accrued  is 
barred  here. 

NEBRASKA. — Real  actions,  foreclosure  of  mortgages,  and  actions  on  official 
and  penal  bonds,  ten  years.  Specialties,  contracts  in  writing,  foreign  judgments, 
five  years.  Contracts  not  in  writing  express  or  implied,  damages  for  failure 
of  consideration  of  contract,  statutory  liabilities,  except  penalties  and  forfeitures, 
trespass  on  real  property,  trover,  detinue,  replevin,  and  relief  on  ground  of  fraud, 
four  years.  Libel,  slander,  assault  and  battery,  malicious  prosecution,  false  imprison- 
ment, statutory'  penalties  and  forfeitures,  and  forcible  entry  and  detainer,  one  year. 
Persons  under  disabilities  may  bring  action  within  the  time  limited  after  removal  of 
the  same.  New  promise  must  be  in  writing.  Actions  which  have  been  barred  by  the 
laws  of  any  other  State  or  Territory  are  barred  here. 

NEVADA. — Real  actions,  except  for  mining  claims,  five  years.  Judgments  and 
contracts  in  writing,  six  years.  Actions  on  open  account  for  goods  sold  and  deliv- 
ered, or  charged  in  store  account,  and  contracts  not  in  writing,  four  years.  Statute 
liabilities  other  than  penalties  or  forfeitures,  trespass  on  real  estate,  taking,  detain- 
ing, or  injuring  goods  and  chattels,  specific  recovery  of  personal  property,  and  relief 
on  ground  of  fraud  dating  from  the  discovery  thereof,  three  years.  Actions  on  judg- 
ment, contract,  or  liability  for  payment  of  money,  or  damages  made  or  incurred  out 
of  the  State,  actions  on  contracts,  etc.,  not  in  writing,  actions  for  the  recoverj'  of 
mining  claims,  actions  against  sheriffs,  etc.,  in  their  official  capacity,  statute  penal- 
ties and  forfeitures,  libel,  slander,  assault,  battery,  and  false  imprisonment,  tn-o 
years.  Statute  does  not  run  during  defendant's  absence  from  the  State,  or  against 
persons  under  disability.  Acknowledgment  or  new  promise  must  be  in  writing. 
Actions  barred  by  the  laws  of  any  other  .State  or  Territory  are  barred  here.  An 
action  on  a  judgment,  contract  for  the  payment  of  money  or  damages  obtained  or 
incurred  out  of  the  State  must  be  commenced  within  tTvo  years. 

NEW  HAMPSHIRE. — Real  actions,  tvjenty  years;  persons  under  legal  dis- 
abilities at  the  time  of  accrual  of  the  right,  five  years  from  the  date  of  removal  of 
the  same.     On  judgments,  recognizances,  and  contracts  under  seal,  tzventy  years. 


ABSTRACT  OF  STATUTES  OF  LIMITATIONS. 


293 


Trespass  to  the  person  and  actions  for  defamatory  words,  two  years.  All  other  per- 
sona! actions,  six  years.  Writ  of  error,  three  years  s.{\.tx  judgment.  Scire  facias 
against  bail  and  indorsers  of  writs,  one  year.  Persons  under  disabilities  may  bring 
any  personal  action  within  two  years  after  removal  of  the  same.  Any  new  promise, 
verbal  or  written,  revives  a  debt. 

NEW  JERSEY. — Real  actions,  twenty  years.  On  judgments,  twenty  years. 
On  sealed  instruments,  sixteen  years.  Trespass,  detinue,  trover,  replevin,  debt 
other  than  specialty,  actions  on  an  account,  actions  on  the  case  except  slander,  and 
actions  that  concern  the  trade  or  merchandise  between  merchant  and  merchant,  six 
years.  Assault,  menace,  battery,  wounding,  and  imprisonment,  y6'Mrji?arj.  Slan- 
der, two  years.  On  sheriff's  bond,  nine  years.  Constable's  bond,  four  years.  In 
case  of  persons  under  disability,  the  limitation  begins  to  run  from  the  date  of  the 
removal  of  the  same.     Limitations  do  not  run  against  persons  out  of  the  State. 

NEW  MEXICO. — Real  actions,  ten  years.  Persons  under  disability,  three  years 
from  the  removal  of  the  same.  Judgments,  fifteen  years.  Notes  and  other  contracts 
in  writing,  six  years.  Accounts,  contracts  not  in  writing,  injuries  to  property,  con- 
version of  personal  property,  relief  on  ground  of  fraud,  and  all  other  actions  not 
specially  provided  for,  four  years.  Actions  against  sureties  on  official  bonds,  against 
sheriffs  in  their  official  capacity,  injuries  to  person  or  reputation,  two  years. 
Replevin,  one  year.  Suits  against  estates  of  deceased  persons  must  be  brought 
within  eighteen  months  after  death.  Representatives  of  persons  dying  within  one 
year  of  expiration  of  limitation  have  one  year  from  death  to  bring  suit.  Persons 
under  disability  are  allowed  one  year  from  the  removal  of  the  same.  New  promise 
must  be  in  writing. 

NEW  YORK. — Real  property,  tzuenty  years.  Persons  under  disabilities,  ten 
years  after  removal  of  the  same.  Judgments  and  sealed  instruments,  tzuenty  years. 
Contracts,  obligations,  and  liabilities,  express  or  implied,  other  than  the  above, 
statute  liabilities  other  than  penalty  or  forfeiture,  actions  for  relief  on  ground  of 
fraud,  judgments  of  courts  not  of  record,  actions  for  injury  to  property  or  persons, 
except  as  otherwise  provided,  and  for  recovery  of  chattels,  six  years.  Actions 
against  sheriffs  or  other  officer  for  non-payment  of  money  collected,  against  con- 
stables in  their  official  capacity,  except  for  an  escape,  actions  for  injury  to  the  person 
resulting  from  negligence,  and  action  against  executor,  etc. ,  for  taking  or  injuring  per- 
sonal property,  three  years.  Libel,  slander,  assault,  battery,  false  imprisonment,  and 
forfeitures  to  the  State,  two  years.  Against  sheriffs  for  official  liability,  except  non- 
payment of  money  collected,  against  other  officers  for  an  escape,  one  year.  All  other 
actions  for  relief,  ten  years.  In  actions  on  an  account  current,  the  cause  of  action 
is  deemed  to  have  accrued  from  the  date  of  the  last  item  proved  on  either  side. 
Limitation  does  not  run  against  a  person  during  his  absence  from  the  State,  unless 
he  designates  a  representative  in  manner  provided  by  statute.  New  acknowledgment 
or  promise  must  be  in  writing.  "^ 

NORTH  CAROLINA. — Real  actions,  twenty  years;  where  adverse  possession 

is  under  color  of  title,  seven  years;  persons  under  disabilities,  three  years  after 
removal  of  the  same.     Judgments  of  a  court  of  record,  sealed  instruments,  foreclos- 


294 


LI  MIT  A  TIONS. 


ure,  and  redemption  mortgages,  ten  years.  Judgments  not  of  record,  and  actions 
by  creditors  of  a  deceased  person  against  his  representatives,  seven  years.  Bonds  ot 
public  officers,  guardians,  executors,  administrators,  and  actions  for  injury  to  any 
incorporal  hereditament,  six  years.  Actions  on  contracts  or  liabilities  arising  out  of 
contracts,  actions  on  statute  liabilities  other  than  penalty  of  forfeiture,  trespass  on 
real  property,  actions  for  taking,  converting,  or  injuring  goods  and  chattels,  criminal 
conversation,  or  any  other  injury  to  the  person  or  rights  of  another  not  arising  on 
contract  or  otherwise  provided  for,  actions  against  sureties  on  bonds  of  executors, 
administrators,  and  guardians,  three  years.  Actions  against  sheriffs,  etc.,  for  tres- 
pass under  color  of  office,  libel,  assault,  battery,  and  false  imprisonment,  actions  for 
escape  against  sheriffs  and  other  officers,  one  year.  Slander,  six  months.  Actions 
for  relief  not  otherwise  provided  for,  ten  years.  Persons  under  disabilities  may  bring 
their  action  within  the  time  limited  after  removal  of  the  same,  except  in  case  of 
actions  for  escape.  Actions  by  and  against  representatives  of  deceased  persons,  one 
year  after  death.  Actions  duly  begun  and  failing  for  any  cause  not  affecting  the 
right  of  action  may  be  brought  again  within  one  year.  New  promise  must  be  in 
writing.     Time  of  absence  from  the  State,  if  more  than  a  year,  is  not  reckoned. 

NORTH  DAKOTA. —  Real  actions,  actions  on  judgments  and  sealed  instru- 
ments, twenty  years.  Actions  on  other  contracts  and  obligations,  express  or  implied, 
statutory  liabilities  other  than  penalties  and  forfeitures,  trespass  on  real  property, 
taking,  detaining,  injuring,  or  for  recovery  of  personal  property,  criminal  conversa- 
tion, and  other  injuries  to  person  and  rights  not  arising  on  contract,  relief  on  ground 
of  fraud,  six  years.  Actions  against  sheriffs,  etc.,  except  for  escape,  actions  for 
penalties  and  forfeitures  by  person  aggrieved,  three  years.  Libel,  slander,  assault 
and  battery,  and  false  imprisonment,  two  years.  Escape,  one  year.  All  other 
actions,  ten  years.     Limitation  does  not  run  against  person  out  of  the  State. 

OHIO. — Real  actions,  tzventy-one  years;  persons  under  disabilities,  ten  years  after 
removal  of  the  same.  Bonds  of  executors,  administrators,  guardians,  sheriffs,  or 
other  officers,  ten  years.  Specialties  and  contracts  in  writing,  fifteen  years.  Con- 
tracts not  in  writing,  and  statutory  liabilities,  other  than  penalty  or  forfeiture,  six 
years.  Trespass  on  real  property,  trover,  replevin,  detinue,  other  actions  for  injury 
to  the  rights  of  plaintiff  not  arising  on  contract  and  for  relief  from  fraud,  four  years; 
forcible  entry  and  detainer,  two  years.  Libel,  slander,  assault,  battery,  malicious 
prosecution,  and  false  imprisonment,  statutory  penalty  or  forfeiture,  one  year. 
Actions  for  relief  not  enumerated,  ten  years.  In  case  of  persons  under  disabilities, 
limitations  begin  to  run  from  the  removal  of  the  same.  Any  acknowledgment  must 
be  in  writing  to  take  the  case  out  of  the  statute.  Time  of  defendant's  absence  from 
the  State  is  not  included.  Cause  of  action  barred  in  State  where  it  arose  is  barred 
here. 

OKLAHOMA  TERRITORY.— Real  actions,  ten  years.  Action  on  official 
bond,  ten  years.  Actions  on  written  contracts  or  foreign  judgments,  five  years. 
Actions  on  parol  contracts,  trespass,  for  taking,  detaining,  or  injuring  personal  prop- 
erty, or  recovering  the  same,  and  actions  founded  on  fraud,  fonr  years.  Libel,  slan- 
der, assault  and  battery,  malicious  prosecution,  false  imprisonment,  penalty  or  for- 
feiture, and  forcible  detainer,  one  year. 


ABSTRACT  OF  STATUTES  OF  LIMITATIONS.        295 

OEEGON. — Real  actions,  judgments  of  record  and  sealed  instruments,  ten  years. 
(Jtlicr  contracts,  six  years.  Statutory  liabilities  other  than  penalty  or  forfeiture. 
waste,  trespass  on  real  estate,  trover,  detinue,  and  replevin,  six  years.  Actions 
a^^iinst  sheriffs,  coroners,  ^nd  constables  in  ofBcial  capacity,  except  for  escape,  pen- 
alties and  forfeitures,  three  years.  IJbel,  slander,  assault  and  battery,  and  false 
imprisonment,  or  for  any  injury  to  the  person,  or  rights  of  another,  not  arising  on 
contract,  and  not  specifically  enumerated,  tzvo  years.  Actions  against  ofificers  for  an 
escape,  one  year.  In  actions  on  mutual,  open,  and  current  account,  the  cause  of 
action  is  deemed  to  have  accrued  from  the  last  item  proved,  but  when  one  year  shall 
have  elapsed  between  any  of  a  series  of  items,  they  are  not  to  be  deemed  such  an 
account.  Limitations  do  not  run  against  persons  out  of  the  State.  Persons  under 
disabilities,  except  infants,  may  bring  action  within  07ie  year  after  removal  of  the 
same,  provided  the  time  is  not  extended  more  ihan  five  years,  and  infants  one  year 
after  attaining  their  majority.     New  promise  must  be  in  writing. 

PENNSYLVANIA. — Real  actions,  tii'cnty-one  years;  persons  under  disabili- 
ties, thirty  years  after  the  right  of  entry  accrued.  Trespass  on  real  property,  detinue, 
trover,  replevin,  actions  of  account  and  on  the  case,  and  actions  of  debt  other  than 
specialty,  six  years.  Suits  for  specific  performance,  or  to  enforce  trust  or  equity  of 
redemption,  _/fz/^_j't?rtrj-.  Judgments  and  mortgages,  and  sealed  instruments  are  pre- 
sumed paid  after  twenty  years,  unless  such  presumption  is  positively  rebutted.  Tres- 
pass to  the  person,  two  years.  Slander,  one  year.  After  failure  of  an  action  for  a 
cause  not  affecting  the  right  of  action,  a  new  action  maybe  brought  within  one  year. 
Limitations,  in  case  of  persons  under  disabilities,  begin  to  run  from  the  removal  of 
the  same. 

RHODE  ISLAND. — Actions  to  recover  real  property  are  not  limited,  but  twenty 
years  of  qr.iet,  uninterrupted,  and  adverse  possession  is  a  good  evidence  of  title. 
Slander,  one  year.  Trespass,  four  years.  Actions  of  account,  except  such  as  con- 
cern the  trade  or  merchandise  between  merchant  and  merchant;  actions  on  the  case, 
except  for  slander,  debt  founded  on  contract,  except  specialty,  actions  -for  arrearages 
of  rent,  actions  of  detinue  and  replevin,  six  years.  Debt  other  than  the  preceding 
and  covenant,  twenty  years.  In  case  of  persons  under  disabilities,  the  limitation 
begins  to  run  from  the  removal  of  the  same.  Actions  against  executors  and  adminis- 
trators, except  for  funeral  charges  and  expenses  of  last  illness,  cannot  be  brought  for 
one  year  after  granting  letters  testamentary,  or  of  administration,  and  are  barred  in 
three  years  thereafter.  Actions  failing  for  a  cause  not  affecting  the  right  of  action, 
one  year  from  such  failure.  Limitation  does  not  run  in  favor  of  a  defendant  during 
his  absence  from  the  .State  unless  he  leaves  property  within  the  State  which  can  be 
taken  by  ordinary  process  of  attachment. 

SOUTH  CAROLINA. — Real  actions,  ten  years;  persons  under  disability,  ten 
years  additional,  but  action  must  be  brought  w'lihm  fve  years  after  removal  of  dis- 
ability. Judgments  and  sealed  instruments,  other  than  sealed  notes  and  bonds  for 
tne  payment  of  money  only  not  secured  by  mortgage,  twenty  years.  Other  con- 
tracts, statutory  liabilities,  except  forfeitures  and  penalties,  trespass  on  real  estate, 
trover,  detinue,  and  replevin,  criminal  conversation,  or  any  other  injury  to  the  per- 


296 


LI  MIT  A  TIONS. 


son  or  rights  of  another  not  arising  on  'contract,  and  rehef  from  fraud,  six  years. 
Actions  against  slieriffs,  coroners,  constables  in  an  official  capacity,  except  for 
escapes,  and  actions  for  penalties  and  forfeitures,  three  years.  Libel,  slander, 
assault,  battery,  and  false  imprisonment,  two  years.  Actions  against  officers  for  an 
escape,  one  year.  In  actions  of  account,  the  limitation  begins  to  run  from  the  last 
item  proved  on  either  side.  Persons  under  disabilities,  except  infants,  may  bring 
action  within  one  year  after  the  removal  of  the  same,  provided  the  time  is  not 
extended  more  than  five  years;  and  infants,  one  year  after  attaining  majority.  Where 
an  action  is  defeated  by  any  technicality,  a  new  action  may  be  brought  within  one 
year.  Period  of  defendant's  absence  from  the  State,  if  more  than  one  year,  is  not 
included  in  the  limitation. 

SOUTH  DAKOTA. — Real  actions  and  actions  on  judgments  rendered  in  the 
State,  and  on  sealed  instruments,  twenty  years.  Other  judgments,  ten  years. 
Actions  on  other  contracts,  express  or  implied,  statutory  liabilities  other  than  penal- 
ties or  forfeitures,  trespass  on  real  property,  taking,  detaining,  or  injuring  personal 
property,  or  recovering  same,  criminal  conversation,  or  other  injury  to  rights  of 
others  not  arising  on  contract,  relief  on  ground  of  fraud,  six  years.  Actions  against 
sheriffs,  etc.,  except  for  escape,  and  for  penalties  and  forfeitures,  three  years.  Libel, 
slander,  assault  and  battery,  and  false  imprisonment,  two  years.  Actions  against 
sheriff  for  escape,  one  year.  Other  actions,  ten  years.  Limitation  does  not  run 
against  person  out  of  the  State. 

TENNESSEE. — Real  actions,  seven  years.  Actions  against  guardians,  execut- 
ors, administrators,  sheriffs,  clerks,  and  other  public  officers,  on  their  official  bonds, 
actions  on  judgments,  and  all  other  cases  not  expressly  provided  for,  ten  years. 
Actions  against  the  sureties  of  guardians,  executors,  administrators,  sheriffs,  clerks, 
and  other  public  officers,  and  actions  for  rent,  and  for  use  and  occupation  of  land, 
and  on  other  contracts  not  mentioned,  six  years.  Injuries  to  real  or  personal  prop- 
erty, detinue,  and  trover,  three  years.  Libel,  injuries  to  person,  false  imprisonment, 
malicious  prosecution,  seduction,  breach  of  promise,  and  statutory  penalties,  one 
year.  Slander,  six  months.  A  new  action  may  be  begun  within  one  year  after  the 
reversal  or  arrest  of  judgment  in  the  original.  Persons  under  disabilities  may  bring 
action  within  three  years  after  removal  of  the  same,  unless  the  limitation  is  less  than 
three  years,  in  which  case  action  must  be  brought  within  the  time  limited  after  such 
removal.  Actions  by  a  resident  of  the  State  against  an  executor,  etc.,  must  be 
brought  within  two  years  after  his  appointment,  by  a  non-resident  within  three  years. 
Period  of  defendant's  absence  from  the  State  is  not  included  in  limitation.  Actions 
barred  by  the  laws  of  the  State  where  they  accrued  are  barred  here. 

TEXAS. — Real  actions,  against  one  in  possession  under  color  of  title,  three  years. 
Five  years  peaceable  possession  of  real  estate,  cultivating  and  using  the  same,  pay- 
ing taxes  thereon,  and  claiming  under  registered  deed,  not  forged,  gives  good  title. 
Ten  years'  peaceable  possession,  cultivation,  and  enjoyment,  without  evidence  of 
title,  gives  full  title  to  one  hundred  and  sixty  acres,  and  to  all  beyond  in  actual  pos- 
session. Judgments  and  suits  for  specific  performance  of  agreement  to  convey  land, 
ten  years.     Debt  on  written  contract,  by  copartners  for  settlement  of  partnership 


ABSTRACT  OF  STATUTES   OF  LIMITATIONS.        297 

N 

accounts,  mutual  current  accouiHs  between  merchants,  and  all  other  causes  of  action 

not  specially  enumerated,  four  years.  Injuries  to  the  property  of  another,  conver- 
sion or  detention  of  personal  property,  forcible  entry  and  detainer  of  real  estate, 
actions  on  open  accounts,  except  between  merchants,  and  contracts  not  in  writing, 
(xi'o  years.  Injuries  to  the  person,  character,  or  reputation  of  another,  breach  of 
promise,  or  for  injuries  where  death  ensues,  one  year.  Limitation  does  not  run 
against  persons  under  disability. 

UTAH. — Real  actions,  seven  years.  In  case  of  disability,  th^  limitation  does  not 
begin  to  run  until  the  removal  thereof.  Judgments,  _/fzr_;vij;\>-.  Contracts  or  obliga- 
tions in  writing,  and  actions  for  relief  not  otherwise  specified,  four  years.  Statute 
liabilities,  other  than  penalties  or  forfeitures,  trespass  on  real  estate,  detinue,  replevin, 
conversion  of  personal  property,  and  relief  on  the  ground  of  fraud,  dating  from  the 
discovery  thereof,  three  years.  Contracts  and  liabilities,  not  founded  on  written 
Instruments,  open  accounts  for  goods,  and  actions  against  sheriffs,  etc.,  two  years. 
Statutory  penalties  and  forfeitures,  libel,  slander,  assault  and  battery,  or  false  impris- 
onment, one  year.  Period  of  defendant's  absence  from  the  Territory  is  not  included. 
New  acknowledgment  or  promise  must  be  in  writing. 

VERMONT. — Real  actions  and  actions  on  covenants  of  seizin  in  deeds  of  land, 
fifteen  rears.  Witnessed  promissory  notes,  fourteen  years.  Judgments  of  courts 
of  record,  specialties,  and  covenants  except  of  seizin,  eight  years.  Debt  on  any 
contract,  obligation,  or  liability,  not  under  seal,  or  on  judgments  of  courts  not  of 
record,  debt  for  rent,  actions  of  account,  assumpsit,  or  case  founded  on  any  contract 
or  liability;  trespass  on  land,  replevin,  trover,  and  detinue,  and  actions  on  the  case, 
except  libel  and  slander,  six  years.  Action  against  sheriff  for  act  of  deputy,  four 
years.  Assault  and  batter)',  and  false  imprisonment,  three  year:.  Libel  and 
slander, /(i'fjVfT/'j-,  Executors  and  administrators  may  bring  actions  which  sur\-ive 
t-i.i'0  years  after  death  of  the  party  entitled.  Actions  duly  begun  and  failing  by 
abatement,  arrest,  or  reversal  of  judgment,  may  be  brought  again  within  one  year. 
Time  of  absence  from  the  State  without  known  attachable  property  in  the  State  is  not 
computed  in  the  limitation.  Limitations  in  case  of  persons  under  disabilities  begin 
to  run  from  the  removal  of  the  same.     New  promise  must  be  in  writing. 

VmSINIA. — Land  east  of  the  Alleghanies,  fifteen  years ;  west  of  the  AUeghanies, 
ten  years;  if  the  person  be  under  disabilities,  ten  years  after  removal  of  same,  pro- 
vided the  whole  limitation  is  not  more  than  twenty  years.  Deeds  of  trust  and 
mortgages,  except  those  executed  by  a  corporation,  twenty  years.  Contracts  in 
writing  under  seal,  ten  years;  not  under  seal,  five  years.  Bonds  of  indemnity, 
bonds  of  executors,  administrators,  curators,  committees,  guardians,  sheriffs,  clerks, 
sergeants,  or  other  fiduciary  or  public  officers,  ten  years.  Recognizance  of  bail  in  a 
civil  suit,  three  years  after  the  right  to  sue  out  execution  shall  have  accrued,  omitting 
such  part  of  the  three  years  as  the  right  to  sue  shall  have  been  suspended  by  injunc- 
tion, supersedeas,  or  other  legal  process;  other  recognizance,  ten  years.  Articles 
charged  on  the  store  account,  two  years;  if  upon  any  other  contract,  three  years.  Ac- 
tions for  personal  injury  or  death,  one  year.  Actions  between  partners  for  settlement, 
and  accounts  concerning  the  trade  of  merchandise  between  merchant  and  merchant, 


298 


LIMIT  A  riONS. 


five  vcfirs  from  cessation  of  dealings.  All  other  personal  actions,  Ji^ie  years. 
Acknowledgment  of  a  debt  must  be  in  writing.  Persons  under  disabilities  may 
bring  actions  within  the  time  limited  after  the  removal  of  their  disabilities,  pro- 
vided it  be  within  tzoenty  years  from  the  original  accrual  of  the  right.  Actions 
failing  by  abatement,  arrest,  or  reversal  of  judgment,  may  be  brought  again  within 
otie  year. 

WASHINGTON. — Real  actions,  ten  years.  Judgments,  contracts  in  writing, 
actions  for  rents  and  profits  or  use  and  occupation  of  real  estate,  six  years.  Waste 
or  trespass  upon  real  estate,  actions  for  taking,  detaining,  or  injuring  personal 
property,  or  for  the  s'pecific  recovery  thereof;  or  for  injury  to  the  person  or  rights  of 
another,  not  specially  enumerated,  contracts  not  in  writing,  relief  on  ground  of  fraud, 
actions  against  sheriffs,  etc.,  except  for  escape,  statute  penakies  and  forfeitures  to 
party  aggrieved,  seduction,  and  breach  of  promise  of  marriage,  three  years.  Libel, 
slander,  assault  and  battery,  false  imprisonment,  and  penalties  to  the  State,  and 
actions  for  relief  not  otherwise  provided  for,  tzco  years.  Action  against  ofticer  for 
escape,  one  year.  Limitation  does  not  run  against  parties  under  disability,  until 
after  the  removal  of  the  same.  Causes  of  action  arising  in  another  State  or  Terri- 
tory, between  non-residents  of  this  State,  and  barred  by  law  there  barred  here 
also.     New  acknowledgment  of  promise  must  be  in  writing. 

WEST  VIRGINIA. — Real  actions,  ten  years;  persons  under  disabilities,  five 
years  after  the  removal  of  the  same,  provided  the  whole  limitation  is  not  more  than 
f-wenty  years.  Bonds  of  executors,  administrators,  guardians,  sheriffs,  or  other 
public  officers,  and  other  instruments  under  seal,  awards  and  contracts  in  writing  not 
under  seal,  ten  years.  Other  contracts,  five  years;  except  actions  for  articles  charged 
in  store  account,  whicii  must  be  brought  in  three  years.  Current  accounts,  three 
years.  Actions  on  recognizances,  other  than  bail  in  a  civil  suit  and  judgments,  ten 
years.  Recognizance  of  bail  in  civil  suit,  three  years.  All  other  2iC\\ox\'~,  five  years. 
Actions  on  judgments  barred  where  rendered  are  barred  here,  and  actions  or  con- 
tracts made  to  be  performed  in  another  State  and  barred  there,  are  barred  here  also. 
Limitation  does  not  run  in  favor  of  a  resident  of  the  State  during  his  absence  there- 
from or  w-hile  absconding  or  concealing  himself.  Nev/  acknowledgment  or  promise 
must  be  in  writing. 

WISCONSIN. — Keal  actions,  tzveiity  years;  persons  under  disabilities,  _/?z.r_y^i?;-.r 
after  removal  of  the  same.  On  adverse  possession  of  ten  years  under  claims  of  title 
under  written  instrument  or  judgment  is  in  certain  cases  a  bar.  Judgments  of  courts 
of  record  of  the  State  of  Wisconsin  or  of  the  United  States  sitting  in  the  State,  and 
sealed  instruments,  when  the  cause  of  action  accrues  within  the  State,  twenty  years. 
Judgments  of  other  courts  of  record  and  sealed  instruments  accruing  without  the 
State  and  actions  for  damages  for  flowing  land,  ten  years.  Other  contracts,  obliga- 
tions, or  liabilities,  including  actions  on  municipal  bonds  and  coupons,  judgments  of 
courts  not  of  record,  statutory  liabilities  other  than  penalties  or  forfeitures,  injury  to 
property,  real  or  personal,  injury  to  person,  character  or  rights  not  arising  on  con- 
tract not  otherwise  provided  for,  and  actions  for  recovery  of  personal  property  or 
damages  for  detention,  six  years.     Actions  against  sheriffs,  coroners,  and  constables. 


ABSTRACT  OF  STATUTES   OF  LIMITATIONS.       ^rc) 

for  acts  done  in  their  official  capacity,  except  for  escapes,  f/irei-  years.  Statutory 
penalties  and  forfeitures,  libel,  slander,  assault,  battery,  and  false  imprisonment, 
i  100 years.  Actions  against  sheriffs,  etc.,  for  escapes,  one  year.  Persons  under 
disabilities,  except  infants,  may  bring  action  after  the  disability  ceases,  provided  the 
period  is  not  extended  more  thanyf^c  years,  and  infants  one  year  after  coming  of 
age.  Actions  by  representatives  of  deceased  persons,  £?w^  _j'fflr  from  death;  against 
the  same,  one  year  from  granting  letters  testamentary  or  of  administration.  New 
promise  must  be  in  writing. 

WYOMING. — Real  actions,  ten  years.  Bonds  of  executors,  administrators, 
guardians,  sheriffs,  and  other  officers,  all  bonds  required  by  statute,  and  causes  of 
action  not  specially  enumerated,  ten  years.  Specialties  and  contracts  in  wrltXng,  Jive 
years.  Contracts  not  in  writing,  four  years,  but  on  all  foreign  claims  judgments  or 
contracts  contracted  or  incurred  before  the  debtor  became  a  resident  of  the  Territory, 
actions  must  be  commenced  within  tzuo years  after  he  establishes  his  residence  in  the 
Territory.  Trespass  on  real  estate,  actions  for  taking,  detaining,  or  injuring  per- 
sonal property,  or  for  the  specific  recovery  of  the  same,  action  for  injury  to  plaintiff's 
rights  not  arising  on  contract  and  not  otherwise  provided  for,  four  years.  Libel, 
slander,  assault  and  battery,  malicious  prosecution,  or  false  imprisonment,  one  year. 
Limitations  in  personal  actions  do  not  run  against  persons  under  disabilities  until 
after  the  removal  of  the  same.  Time  of  defendant's  absence  from  the  Territory  or 
absconding  or  concealment  is  not  reckoned.  Actions  on  causes  arising  out  of  the 
Territory  between  non-residents  and  barred  there,  cannot  be  maintained  here.  New 
acknowledgment  or  promise  must  be  in  writing. 


500  INTEREST  AND  USURY. 

CHAPTER  XXIII. 
INTEREST  AND  USURY. 


SECTION   I. 

WHAT   INTEREST   IS,  AND   WHEN    IT    IS    DUE. 

Interest  means  a  payment  of  money  for  the  use  of  money. 
In  most  civilized  countries  the  law  regulates  this  ;  that  is,  it 
declares  how  much  money  may  be  paid  or  received  for  the  use 
of  money  ;  and  this  is  called  legal  interest ;  and  if  more  is  paid 
or  agreed  to  be  paid  than  is  thus  allowed,  it  is  called  usurious 
interest.  By  interest  is  commonly  meant  legal  interest ;  and 
by  usury,  usurious  interest. 

Interest  may  be  due,  and  may  be  demanded  by  a  creditor,  on 
either  of  two  grounds.  One,  a  bargain  to  that  effect  ;  the  other, 
by  way  of  damages  for  withholding  money  that  is  due.  Indeed, 
it  may  be  considered  as  now  the  settled  rule,  that  wherever 
money  is  withheld  which  is  certainly  due,  the  debtor  is  to  be 
regarded  as  having  promised  legal  interest  for  the  delay.  And 
Ltpon  this  implication,  as  on  most  others,  the  usage  of  trade,  and 
tl;^  customary  course  of  dealings  between  the  parties,  would 
have  great  influence. 

Thus,  in  New  York,  it  was  held,  that,  where  it  was  known 
to  one  party  that  it  was  the  uniform  custom  of  the  other  to 
charge  interest  upon  articles  sold  or  manufactured  by  him  after 
a  certain  time,  the  latter  was  allowed  to  charge  interest  accord- 
ingly. 

In  general,  we  may  say  that  interest  is  allowed  bylaw  as  fol- 
lows :  on  a  debt  due  by  judgment  of  court,  it  is  allowed  from 
the  rendition  of  judgment;  and  on  an  account  that  has  been 
liquidated,  or  settled,  from  the  day  of  the  liquidation  ;  for  goods 
sold,  from  the  time  of  the  sale,  if  there  be  no  credit,  and  if  there 
be,  then  from  the  day  when  the  credit  expires  ;  for  rent,  from 
the  time  that  it  is  due,  and  this  even  if  the  rent  is  payable  other- 
wise than  in  money,  but  is  not  so  paid  ;  for  money  paid  for 
another  or  lent  to  another,  from  the  payment  or  loan. 


,     WHAT  INTEREST  TS  AND  WHEX  IT  IS  DUE.        301 

Interest  is  not  generally  recoveraljle  upon  claims  for  unliqui- 
dated damages,  nor  in  actions  founded  on  tort.  13y  nuliqui- 
dated  dcnuages  is  meant  damages  not  agreed  on,  and  of  an 
uncertain  amount,  and  which  the  jury  must  determine.  By 
torts  is  meant  wrongs,  or  injuries  inflicted.  But  although  inter- 
est cannot  be  given  under  that  name,  in  actions  of  this  sort, 
juries  are  sometimes  at  liberty  to  consider  it  in  estimating  the 
damages. 

It  sometimes  happens  that  money  is  due,  but  not  now  pay- 
able ;  and  then  the  interest  does  not  begin  until  the  money  is 
payable.  As  if  a  note  be  on  demand,  the  money  is  always  due, 
but  it  is  not  payable  until  demand  ;  and  therefore  is  not  on 
interest  until  demand.  But  a  note  payable  at  a  certain  time,  or 
after  a  certain  period,  carries  interest  from  that  time,  whether  it 
be  demanded  or  not. 

The  laws  w^hich  regulate  interest  and  prohibit  usury  are  very 
various,  and  are  not  perhaps  precisely  the  same  in  any  two  of 
our  States.  Formerly,  usury  was  looked  upon  as  so  great  an 
offence,  that  the  whole  debt  was  forfeited  thereby.  The  law 
now,  however,  is — generally,  at  least — much  more  lenient. 
The  theory  that  money  is  like  any  merchandise,  worth  what  it 
will  bring  and  no  more,  and  that  its  value  should  be  left  to  fix 
itself  in  a  free  market,  is  certainly  gaining  ground.  In  many 
States  there  are  frequent  efforts  so  to  change  the  statutes  of 
usury  that  parties  may  make  any  bargain  for  the  use  of  money 
which  suits  them  ;  but  when  they  make  no  bargain,  the  law 
shall  say  what  is  legal  interest.  And,  generally,  the  forfeiture 
is  now  much  less  than  the  whole  debt. 

At  the  close  of  this  chapter  will  be  found  a  statement  of  the 
usury  laws  of  the  states. 

There  is  no  especial  form  or  expression  necessary  to  make  a 
bargain  usurious.  It  is  enough  for  this  purpose  if  there  be  a  sub- 
stantial payment,  or  promise  of  payment,  of  more  than  the  law 
allows,  either  for  the  use  of  money  lent,  or  for  the  forbearance 
of  money  due  and  payable.  One  thing,  however,  is  certain : 
there  must  be  a  usurious  intention,  or  there  is  no  usury.  That 
is,  if  one  miscalculates,  and  so  receives  a  promise  for  more  than 
legal   interest,  the   error  may   be  corrected,  the  excess  waived, 


302  INTEREST  AND  USURY. 

and  the  whole  Icijal  interest  elainied.  But  if  one  makes  a  bar- 
gain for  more  than  legal  interest,  believing  that  he  has  a  right  to 
make  sueh  a  bargain,  or  that  the  law  gives  him  all  that  he  claims, 
this  is  a  mistake  of  law,  and  does  not  save  the  party  from  the 
effect  of  usury. 

It  may  be  well  to  remark,  that  the  law  makes  a  very  wide 
distinction  between  a  mistake  of  fact  and  a  viistakc  of  lazv. 
Generally,  it  will  not  permit  a  party  to  be  hurt  by  a  mistake  of 
fact ;  but  it  seldom  suffers  any  one  to  excuse  himself  by  a  mis- 
take of  law,  because  it  holds  that  everybody  should  know  the 
law,  and  because  it  would  be  dangerous  to  permit  ignorance  of 
the  law  to  operate  for  any  one's  benefit. 

The  question  has  been  much  discussed,  whether  the  use  of 
the  common  tables  which  are  calculated  on  the  supposition  tha*" 
a  year  consists  of  360  days,  is  usurious.  In  New  York,  it  ha! 
been  held  that  it  is  ;  but  in  Massachusetts,  and  some  othe. 
States,  it  is  held  that  the  use  of  such  tables  does  not  render  th« 
transaction  usurious.     We  think  this  latter  the  better  opinion. 

If  a  debtor  requests  time,  and  promises  to  pay  for  the  forbear 
ance  legal  interest,  and  as  much  more  as  the  creditor  shall  be 
obliged  to  pay  for  the  same  money,  this  is  not  a  usurious  con 
tract.  And,  even  if  usurious  interest  be  actually  taken,  this, 
although  strong  evidence  of  an  original  usurious  bargain  and 
intent,  is  not  conclusive,  but  may  be  rebutted  by  adequate  proof 
or  explanation. 

When  a  statute  provides  that  a  usurious  contract  is  wholly 
void,  such  a  contract  cannot  become  good  afterwards  ;  and  there- 
fore a  note  which  is  vsurious,  if  it  be  therefore  void  by  lav/  in  its 
inception,  is  not  valid  in  the  hands  of  an  innocent  indorsee. 
But  it  is  otherwise  where  the  statute  does  not  declare  the  con- 
tract void  on  account  of  the  usury.  If  a  note,  or  any  securities 
for  a  usurious  bargain,  be  delivered  up  by  the  creditor  and  can- 
celled, and  the  debtor  thereupon  promises  to  pay  the  original 
debt  and  lawful  interest,  this  promise  is  valid. 

New  securities  for  old  ones  which  are  tainted  with  usury  are 
equally  void  with  the  old  ones,  or  subject  to  the  same  defence. 
Not  so,  however,  if  the  usurious  part  of  the  original  securities  be 
expunged,  and  not  included  in  the  new  ;  or  if  the  new  ones  are 


irilA  T  INTEREST  IS  AXD  WHEN  IT  IS  DUE.        -q 


j'-'j 


given  to  third  parties,  who  were  wholly  innocent  of  the  original 
usurious  transaction.  And  if  a  debtor  suffers  his  usurious  debt 
to  be  sued,  and  a  judgment  recovered  against  him  for  the  whole 
amount,  it  is  then  too  late  for  him  to  take  any  advantage  of  the 
usury. 

So,  if  land  or  goods  be  mortgaged  to  secure  a  usurious  debt, 
and  afterwards  conveyed  to  an  innocent  party,  subject  to  such 
mortgage,  the  latter  cannot  set  up  the  defence  of  usury,  and 
thereby  defeat  an  action  to  enforce  the  mortgage. 

Usurers  resort  to  many  devices  to  conceal  their  usury  ;  and 
sometimes  it  is  very  difUcult  for  the  law  to  reach  and  punish 
this  offence.  A  common  method  is  for  the  lender  of  money  to 
sell  some  chattel,  or  a  parcel  of  goods,  at  a  high  price,  the  bor- 
rower paying  this  price  in  part  as  a  premium  for  the  loan.  In 
England,  it  would  seem  from  the  reports  to  be  quite  common 
for  one  who  discounts  a  note  to  do  this  nominally  at  legal  rates, 
but  to  furnish  a  part  of  the  amount  in  goods  at  a  very  high  val- 
uation. In  all  cases  of  this  kind,  or  rather  in  all  cases  where 
questions  of  this  kind  arise,  the  court  endeavors  to  ascertain  the 
real  character  of  the  transaction.  Such  a  transaction  is  always 
suspicious,  for  the  obvious  reason  that  one  who  wants  tc  borrow 
money  is  not  very  likely  to  desire  at  the  same  time  to  buy  goods 
at  a  high  price.  But  the  j  ury  decide  all  questions  of  this  kind  ; 
and  it  is  their  duty  to  judge  of  the  actual  intention  of  the  par- 
ties from  all  the  evidence  offered.  If  that  intention  is  substan- 
tially that  one  should  loan  his  money  to  another,  who  shall 
therefore,  in  any  manner  whatever,  pay  to  the  lender  more  than 
legal  interest,  it  is  a  case  of  usury.  "  Where  the  real  truth  is 
a  loan  of  money,"  said  Lord  Mansfield,  "the  wdt  of  man  cannot 
find  a  shift  to  take  it  out  of  the  statute."  If  this  great  judge 
meant  only  that,  whenever  legal  evidence  shows  the  transaction 
to  be  a  usurious  loan,  the  law  pays  no  respect  whatever  to  any 
pretence  or  disguise,  this  is  certainly  true.  Ikit  the  wit  of  man 
does  undoubtedly  devise  many  "  shifts,"  which  the  law  cannot 
detect.  There  seems  to  be  a  general  rule  in  these  cases  in  ref- 
erence to  the  burden  of  proof  ;  the  borrower  must  first  show 
that  he  took  the  goods  on  compulsion  ;  and  then  it  is  for  the 
lender  to  prove  that  no  more  than  their  actual  value  was  received 
or  charged  for  them. 


304  INTEREST  AND  USURY. 

If  one  should  borrow  stock  at  a  valuation  much  above  the 
market  rate,  and  agree  to  pay  interest  on  this  value  for  the  use 
of  the  stock  to  sell  or  pledge,  this  would  be  usurious. 

One  may  lend  his  stock,  and  may,  without  usury,  give  the 
borrower  the  option  to  replace  the  stock,  or  to  pay  for  it  at  even 
a  high  value,  with  interest.  But,  if  he  reserves  this  option  to 
himself,  the  bargain  is  usurious,  because  it  gives  the  lender  the 
right  to  claim  more  than  legal  interest.  So,  the  lender  may 
reserve  either  the  dividends  or  the  interest,  if  he  elects  at  the 
time  of  the  loan  ;  but  he  cannot  reserve  the  right  of  electing 
at  a  future  time,  when  he  shall  know  what  the  dividends  are. 

A  contract  may  seem  to  be  two,  and  yet  be  but  one,  if  the 
seeming  two  are  but  parts  of  a  whole.  Thus,  if  A  borrows 
one  thousand  dollars,  and  gives  a  note  promising  to  pay  legal 
interest  for  it,  and  then  gives  another  note  for  (or  otherwise 
promises  to  pay)  a  further  sum,  in  fact  for  no  consideration  bui 
the  loan,  this  is  all  one  transaction,  and  it  constitutes  a  usurious 
contract. 

But  if  there  be  a  loan  on  legal  terms,  with  no  promise  or 
obligation  on  the  part  of  the  borrower  to  pay  any  more,  this 
might  J.ot  be  invalidated  by  a  mere  understanding  that  the 
borrower  should,  when  the  money  was  paid  by  him,  make  a 
present  to  the  lender  for  the  accommodation.  And  if,  after 
a  payment  has  been  made,  which  discharged  all  legal  obligation, 
the  payer  voluntarily  adds  a  gift,  this  would  not  be  usurious. 
But  in  every  such  case  the  question  for  a  jury  is,  What  v.-as 
this  additional  transfer  of  money,  in  fact;  was  it  a  voluntary 
gift,  or  was  it  the  payment  of  a  debt  1  If  an  honest  gift,  it  was 
not  usurious  ;  if  a  payment,  it  was  usurious. 

A  foreign  contract,  valid  and  lawful  where  made,  ma)^  be 
enforced  in  a  State  in  which  such  a  contract,  if  made  there, 
would  be  usurious.  But  if  usurious  where  it  was  made,  and 
by  reason  of  that  usury,  wholly  void  in  that  State,  if  it  is  pu 
in  suit  in  another  State  where  the  penalty  tor  usury  is  less,  it 
cannot  be  enforced  under  this  mitigated  penalty ;  but  it  is 
wholly  void  there  also. 


A  CHARGE  FOR  RISK  OR  FOR  SERVICE.  305 

SECTION  11. 

A   CHARGE   FOR   RISK    OR   FOR    SERVICE. 

[t  is  undoubtedly  lawful  for  a  lender  to  charge  an  extra 
price  for  the  risk  he  incurs,  provided  that  risk  be  perfectly  dis- 
tinct and  different  from  the  merely  personal  risk  of  the  debtor's 
being  unable  to  pay.  If  anything  is  paid  for  this  last  risk,  it 
is  certainly  usury. 

So,  one  may  charge  for  services  rendered,  for  brokerage,  or 
for  rate  of  exchange,  and  may  even  cause  a  domestic  loan  or 
discount  to  be  actually  converted  into  a  foreign  one,  so  as  to 
charge  the  exchange;  and  this  would  not  be  usurious.  But 
here,  as  before,  and  indeed  throughout  the  law  of  usury,  it  is 
necessary  to  remember  that  the  actual  intention,  and  not  the 
apparent  purpose  or  form  of  the  transaction,  must  determine 
its  character.  So,  if  one  lends  money  to  be  used  in  business, 
and  lends  it  upon  such  terms  that  he  becomes  a  partner  in  fact 
with  those  who  use  it,  taking  his  share  of  the  profits,  and 
becoming  liable  for  the  losses,  this  is  not  usurious. 

So,  if  one  enters  into  a  partnership,  and  provides  money  for 
its  business,  and  the  other  party  is  to  bear  all  the  losses,  and 
also  to  pay  the  capitalist  more  than  legal  interest  as  his  share 
of  the  profits,  this  is  not  usurious,  because  there  is  no  loan,  if 
there  be  in  fact  a  partnership  ;  for  then  there  is  a  very  impor- 
tant risk,  as  he  becomes  liable  for  all  the  debts  of  the  partner- 
ship. 

The  banks  always  get  m.ore  than  legal  interest  by  their  way 
of  discounting  notes  and  deducting  the  whole  interest  from  the 
amount  they  give.  This  is  perfectly  obvious  if  we  take  an 
extreme  case ;  as  it  a  bank  discounted  a  note  of  a  thousand 
dollars  at  fifteen  years,  in  Massachusetts,  the  bank  would  dis- 
count the  interest  of  a^!  the  fifteen  years ;  the  borrower  would 
receive  one  hundred  dollars,  and  at  the  end  of  fifteen  years  h 
would  pay  back  one  thousand  dollars,  which  is  equivalent  to 
paying  nine  hundred  dollars  for  the  use  of  one  hundred  for 
fifteen  years,  whereas  the  legal  interest  would  be  but  ninety 
dollars.  But  this  method  is  now  established  by  usage  and 
sanctioned  by  law.  It  should,  however,  be  confined  to  dis 
20 


306  INTEREST  AND  USURY. 

counts  of  negotiable  paper,  not  having  a  very  long  time  to  run. 
For  the  rule  is  founded  upon  usage,  and  the  usage  goes  nc 
further. 

SECTION  III. 

THE    SALE    OF   NOTES. 

There  are,  perhaps,  no  questions  in  relation  to  interest  and 
usury  of  more  importance  than  those  which  arise  from  the  sale 
of  notes  or  other  securities.  In  the  first  place,  there  is  no 
doubt  whatever  that  the  owner  of  a  note  has  as  good  a  right  to 
sell  it  for  the  most  he  can  get,  as  he  has  to  sell  any  goods  or 
wares  which  he  owns.  There  is  here  no  question  of  usury, 
because  there  is  no  loan  of  money,  nor  forbearance  of  debt. 
But,  on  the  other  hand,  it  is  quite  as  certain  that  if  any  person 
makes  his  own  note,  and  sells  that  for  what  he  can  get,  this, 
while  in  appearance  the  sale  of  a  note,  is  in  fact  the  giving  of 
a  not  J  for  money.  It  is  a  loan  and  a  borrowing,  and  nothing 
else.  And  if  the  apparent  sale  be  for  such  a  price  that  the 
seller  pays  more  than  legal  interest,  or,  in  other  words,  if  tie 
note  bear  interest  and  is  sold  for  less  than  its  face,  or  is  not  on 
interest,  and  more  than  interest  is  discounted,  it  is  a  usurious 
transaction.  Supposing  these  two  rules  to  be  settled,  the 
question  in  each  case  is,  under  which  of  them  does  that  case 
come,  or  to  which  of  them  does  it  draw  nearest. 

We  are  not  aware  of  any  general  principle  so  likely  to  be  of 
use  in  determining  these  questions  as  this:  if  the  seller  of  a 
note  acquired  it  by  purchase,  or  if  it  is  his  for  money  advanced 
or  lent  by  him  to  its  full  amount,  he  may  sell  it  for  what  he  can 
get ;  but  if  he  be  the  maker  of  the  note,  or  the  agent  of  the 
maker,  and  receives  for  the  note  less  than  would  be  paid  him  if 
only  a  lawful  discount  were  made,  it  is  a  usurious  loan.  In 
other  words,  the  first  holder  of  a  note  (and  the  maker  of  a  note 
is  not  and  cannot  be  its  first  holder)  must  pay  to  the  maker  the 
face  of  the  note,  or  its  full  amount.  And  after  paying  this,  he 
may  sell  it,  and  any  subsequent  purchaser  may  sell  it  as 
merchandise.  The  same  rule  must  apply  to  corporations,  and 
all  other  bodies  or  persons  who  issue  their  notes  or  bonds  on 
interest.     If  sold  by  brokers   for  them,  for  less  than  the  full 


COMPOUXD  INTEREST. 


\Q7 


amount,  it  is  usurious.  Xor  can  such  notes  come  into  the 
market  free  from  the  taint  and  the  defence  of  usury,  unless  tlie 
first  party  who  holds  them  pays  for  them  their  full  value. 

But  then  comes  another  question.  If  a  note  be  offered  for 
sale,  and  be  sold  for  less  than  its  face,  and  the  purchaser  sup- 
poses  himself  to  buy  it  from  an  actual  holder  and  not  from  the 
maker,  can  the  maker  interpose  the  defence  that  it  was  actually 
usurious,  on  the  ground  that  the  seller  was  only  his  agent.'  I 
should  say  that  he  could  not  ;  that  there  can  be  no  usury  unless 
this  is  intend e:l ;  and  that  the  guilty  intention  of  one  party 
cannot  affect  anvOther  party  who  was  innocent. 

I  should  say,  also,  that  one  who,  having  no  interest  in  a 
note,  ir^  lorses  or  guarantees  it  for  a  certain  premium,  will  be 
liable  for  its  face ;  he  does  not  now  add  his  credit  to  the  value 
of  his  property  and  sell  both  together,  as  where  he  indorses  a  note 
which  he  h./ids  himself,  but  sells  his  credit  alone.  This  trans- 
action I  should  not  think  usurious.'  And  if  it  v/as  open  to  no 
other  defence,  as  fraud,  for  exam.ple,  and  was  in  fact  what  it 
purported  to  be,  and  not  a  mere  cover  for  a  usurious  loan,  v,e 
know  no  good  reason  why  such  indorser  or  guarantor  should 
not  be  held  liable  to  the  full  amount  of  his  promise, 

SECTION  IV. 

COMPOUXD   IXTEREST. 

CoMi-'OUND  interest  is  sometim.es  said  to  be  usurious  ;  but  it 
is  not  so  ;  and  even  those  cases  which  speak  of  it  as  "  savoring 
of  usury  "  may  be  thought  to  go  too  far,  unless  every  hard  bar- 
gain for  money  is  usurious.  As  the  authorities  now  stand, 
however,  a  contract  or  promise  to  pay  money  with  compound 
interest  cannot,  generally,  be  enforced.  On  the  other  hand  it 
is  neither  v.holly  void,  nor  attended  with  any  penalty,  as  it  would 
be  if  usurious;  but  is  valid  for  the  principal  and  simple  interest 
only. 

Nevertheless,  compound  interest  is  sometimes  recognized 
as  due  by  courts  of  law,  as  well  as  of  equity;  and  sometimes, 
too,  by  its  own  name.  Thus,  if  a  trustee  be  proved  to  have 
had  the  money  of  the   party  for  whom   he  is  trustee  (who  is 


jo8  INTEREST  AND   USURY. 

called  in  law  his  cestui  qite  trust)  for  a  long  time,  without 
accouhtin<^  for  it,  he  may  be  charged  with  the  whole  amount, 
reckoned  at  compound  interest,  so  as  to  cover  his  unlawful 
profits.  If  compound  inierest  has  accrued  under  a  bargain  for 
it,  and  been  actually  paid,  it  cannot  be  recovered  back,  as  money 
usuriously  paid  may  be.  And  if  accounts  are  agreed  to  be 
settled  by  annual  rests,  which  is  in  fact  compound  interest,  or 
are  actually  settled  so  in  good  faith,  the  law  sanctions  this.  Some 
times,  in  cases  of  disputed  accounts,  the  courts  direct  this 
method  of  settlement. 

Where  money  due  on  interest  has  been  paid  by  sundry 
instalments,  the  mode  of  adjusting  the  amount  which  has  the 
best  authority,  and  the  prevailing  usage  in  its  favor,  seems  to  be 
this  :  Compute  the  interest  due  on  the  principal  sum  to  the  time 
when  a  payment,  either  alone  or  in  conjunction  with  preceding 
payments,  shall  equal  or  exceed  the  interest  due  on  the  princi- 
pal. Deduct  this  sum,  and  upon  the  balance  cast  interest  as 
before,  until  a  payment  or  payments  equal  the  interest  due; 
then  deduct  again,  and  so  on. 


ABSTRACTS  OF  THE  USURY  LAWS  OF  THE  STATES 
AND  TERRITORIES. 

These  lavs  are  stated  from  the  latest  information,  but  are  constantly  undergoing  change,  and  are 
likely  to  be  so  until  restrictions  upon  interest  are  abolished,  as  ihey  are  now  in  some  Stales. 

ALABAMA. —  Legal  interest,  eight  per  cent.  Plea  of  usury  defeats 
recovery  of  all  interest. 

ARIZONA. —  Legal  interest,  7  per  cent.,  but  parties  may  agree  \i 
writing  for  any  rate. 

ARKANSAS. —  Legal  interest,  six  per  cent.,  but  parties  may  contract 
for  any  rate  not  exceeding  ten  per  cent.  Contracts  for  more  than  ten  per 
cent,  are  void,  both  as  to  principal  and  interest. 

CALIFORNIA.  —  Legal  interest,  seven  per  cent.,  but  parties  may  agree 
in  writing  for  any  rate. 

CANADA,  DOMINION  OF.  — Legal  interest,  generally  six  per  cent., 
with  the  right  to  agree  on  what  parties  will,  but  with  exceptions  in  different 
provinces,  especially  as  to  banks  and  other  corporations,  and  loans  on  differ- 
ent kinds  of  security. 


ABSTRACTS  OF   USURY  LAWS.  3C9 

COLOSADO. —  Legal  interest,  S  per  cent.,  but  parties  may  agree  iu  writ- 
ing vipon  any  rate. 

CONNECTICUT.—  Legal  interest,  six  per  cent. ,  in  the  absence  of  any 
agreement,  and  no  more  can  be  recovered  after  maturity  of  obligation.  No 
usury  law. 

DELAWARE. —  Legal  interest,  six  per  cent.  Penalty  for  taking  more, 
forfeiture  of  the  money  lent  —  half  to  the  prosecutor,  half  to  the  State. 

DISTRICT  OF  COLUMBIA.— Legal  interest,  six  per  cent.  Ten  per 
cent,  may  be  paid  on  written  agreement.  Contract  in  writing  for  more  than 
ten  per  cent,  or  verbal  contract  for  more  than  six  per  cent,  forfeits  all 
interest. 

FLORIDA. —  Legal  interest,  eight  per  cent.  But  the  usury  laws  are 
expressly  abolished. 

GEORGIA. —  Legal  interest,  seven  per  cent.  Not  exceeding  eight  per 
cent,  may  be  recovered  if  agreed  upon  in  writing.     Excess  forfeited. 

IDAHO. —  Legal  interest,  ten  per  cent.  Parties  may  agree  in  writing 
for  any  rate  not  exceeding  one  and  one-half  per  cent,  per  month.  Penalty 
for  greater  rate,  three  times  amount  so  paid,  and  liability  to  fine  and  impris 
onment. 

ILLINOIS. —  Legal  interest,  five  per  cent.  Parties  may  agree  upon 
seven  per  cent,  in  writing.  If  more  is  agreed  on  or  is  taken  upon  any  con- 
tract, verbal  or  written,  only  the  principal  can  be  recovered. 

INDIANA. —  Legal  interest,  six  per  cent.  Eight  per  cent,  may  be 
agreed  upon  in  writing.  It  may  be  taken  for  the  period  of  a  year  or  less  in 
advance.  Excess  cannot  be  recovered,  and,  if  paid,  shall  be  considered  as 
paid  on  account  of  the  principal. 

IOWA. —  Legal  interest,  six  per  cent.  Parties  may  agree  in  writing  for 
eight  per  cent.  If  contract  be  for  more,  the  creditor  recovers  only  the  prin 
cipal,  and  ten  per  cent,  on  the  amount  of  the  contract  is  forfeited  to  the  Slate. 

KANSAS. —  Legal  interest,  six  per  cent.  Parties  may  stipulate  in 
writing  for  any  rate  not  exceeding  ten  per  cent.  If  more  than  ten  per  cent, 
be  contracted  for  double  the  excess  is  forfeited. 

KENTUCKY. —  Legal  interest,  six  per  cent.  Extra  interest  forfeited  ; 
if  paid,  may  be  recovered  back. 

LOUISIANA. —  Legal  interest,  five  per  cent.     Eight  per  cent,  may  be 

stipulated  in  writing,  and  a  higher  rate  may  be  collected  if  embodied  in  the 
obligation  as  discount ;  but  any  agreement  for  more  than  eight  per  cent 
after  the  maturity  of  the  obligation,  forfeits  the  entire  interest. 

MAINE. —  Legal  interest,  six  per  cent.     There  are  no  usury  laws. 

MARYLAND. —  Legal  interest  six  per  cent.     Excess  forfeited. 

MASSACHUSETTS.— Legal  interest,  six  per  cent.  Any  rate  of  inter- 
est or  discount  may  be  made  by  written  agreement  Debtor  may  discharge 
loan  of  less  than  one  thousand  dollars  bv  tender  of  principal  and  eighteen 
per  cent,  interest  with  not  exceeding  ten  dollars  for  expenses. 


3IO 


INTEREST  AND  USURY. 


MICHIGAN. —  Legal  interest,  six  per  cent.  Parties  may  agree  in 
writing  for  ten  per  cent.  If  more  interest  is  agreed  for,  only  legal  interest 
recoverable. 

MINNESOTA. —  Legal  interest,  seven  per  cent.  Parties  may  agree  in 
writing  for  ten.  Excess,  if  paid,  may  be  recovered.  Usurious  contracts  are 
v(jid,  except  as  to  bona  fide  purchasers  of  negotiable  paper  before  maturity. 
Rate  after  maturity  same  as  before ;  contract  for  more  forfeits  all  interest. 

MISSISSIPPI. —  Legal  interest,  six  per  cent.  Parties  may  agree  in 
writing  for  ten  per  cent.  If  more  be  agreed  for,  the  excess  is  not  collectible, 
and  on  contracts  made  after  Nov.  i,  iSSo,  the  whole  interest  will  be  forfeited. 

MISSOURI. —  Legal  interest,  six  percent;  but  parties  may  agree  in 
writing  for  any  rate  not  to  exceed  8  per  cent.  If  more  be  taken  or  agreed 
for,  the  creditor  recovers  only  the  principal,  and  interest  at  ten  per  cent,  is 
forfeited  to  the  State. 

MONTANA. —  Legal  interest,  ten  per  cent.  Parties  may  agree  in  writing 
for  any  rate. 

NEBRASKA. —  Legal  interest,  seven  per  cent.  Parties  may  agree  on 
anv  rate  not  exceeding  ten  per  cent.  On  proof  of  illegal  interest,  plaintiff 
recovers  only  principal. 

NEVADA. —  Legal  interest,  seven  per  cent.  But  parties  may  agree  in 
w  riting  for  any  rate. 

NEW  HAMPSHIRE. —  Legal  interest,  six  per  cent.  A  person  receiv- 
ing more  forfeits  threefold  the  excess ;  but  contracts  are  not  invalidated  by 
securing  or  taking  more. 

NEW  JERSEY. —  Legal  interest,  six  per  cent.  On  usurious  contract, 
principal  only  can  be  recovered. 

NEW  MEXICO. —  Legal  interest,  six  per  cent.,  but  parties  may  agree 
for  twelve  per  cent.  If  more  be  paid,  double  the  amount  so  paid  may  be 
recovered.     Usury  is  also  punishable  by  fine. 

NEW  YORK. —  Leg.al  interest,  six  per  cent.  A  contract  for  more  than 
legal  interest  is  wholly  void.  If  more  than  legal  interest  is  paid,  it  may  be 
recovered  back  within  a  year  by  payer,  or  within  the  next  three  years  by  the 
overseers  of  the  poor.  No  corporation  can  interpose  the  defense  of  usury ; 
nor  can  a  joint-stock  conij^any  having  the  powers  of  a  corporation.  When 
loans  on  demand  of  five  thousand  dollars  or  more  are  made  on  security  of 
bills  of  lading,  negotiable  instruments,  etc.,  parties  may  agree  in  writing  on 
any  rate  of  compensation.  Usury  is  a  misdemeanor  punishable  by  fine  or 
imprisonment. 

NORTH  CAROLINA. —  Legal  interest,  six  per  cent.  Eight  per  cent, 
may  be  recovered  for  loan  of  money  by  written  agreement.  On  usurious 
contracts  no  interest  is  recoverable.  If  usurious  interest  be  paid,  twice  the 
amount  may  be  recovered  by  debtor,  if  suit  be  brought  within  two  years. 

NORTH  DAKOTA. —  Legal  interest,  seven  per  cent.  Twelve  per  cent, 
may  be  contracted  for  in  writing.     Agreement  for  more  invalidates  entire 


ABSTRACTS  OF  USURY  LAWS. 


311 


contract,  except  in  case  of  purchaser  of  negotiable  note  or  bill  of  exchange 
of  the  original  holder  in  good  faith  for  valuable  consideration  before 
maturity. 

OHIO. —  Legal  interest,  six  per  cent.  Any  rate  not  exceeding  eight  per 
cent,  may  be  agreed  upon  in  writing.  Excess  cannot  be  collected,  and  if 
paid,  may  be  recovered. 

OKLAHOMA  TERRITORY.— Legal  interest,  seven  per  cent.  Ten 
per  cent,  may  be  contracted  for.     Usury  works  forfeiture  of  all  interest. 

OREGON. — Legal  interest,  eight  per  cent.  Parties  may  agree  for  ten 
per  cent.     Usury  works  a  forfeiture  of  the  principal  and  interest. 

PENNSYLVANIA. —  Legal  interest,  six  per  cent.  Excess  cannot  be 
recovered.  If  paid,  may  be  recovered  back  if  sued  for  within  six  months. 
Commission  merchanis  and  agents  may  contract  with  parties  out  of  the  State 
for  seven  per  cent. 

RHODE  ISLAND. —  Legal  interest,  six  per  cent.  Any  higher  rate  may 
be  agreed  upon. 

SOUTH  CAROLINA.  —  Legal  interest,  seven  per  cent.  Parties  may 
agree  in  writing  for  eight  per  cent.  Usury  works  a  forfeiture  of  entire  inter- 
est.    If  usurious  interest  be  paid,  double  the  amount  may  be  recovered. 

SOUTH  DAKOTA. —  Legal  interest,  seven  per  cent.  Parties  may  con- 
tract for  twelve  per  cent.     Usury  forfeits  entire  interest.  '^■ 

TENNESSEE. —  Legal  interest,  six  per  cent.  Paper  showing  contract 
for  usury  cannot  be  sued  on,  but  action  may  be  brought  for  debt  as  if  paper 
did  not  exist.     Usurious  interest  if  paid  may  be  recovered. 

TEXAS. —  Legal  interest,  six  per  cent.  Parties  may  agree  in  writing 
for  ten  per  cent.  If  more  than  this  is  agreed  for,  no  interest  can  be 
recovered. 

UTAH. —  Legal  interest,  eight  per  cent.  Any  rate  may  be  agreed  on  in 
writing. 

VERMONT. —  More  than  six  per  cent,  prohibited,  and  a  person  paying 
more  may  recover  excess. 

VIRGINIA. —  Legal  interest,  six  per  cent.  If  more  be  charged,  no 
interest  can  be  recovered.  Usurious  interest  paid  may  be  recovered  within 
one  year. 

WASHINGTON. —  Legal  interest,  ten  per  cent.  Any  rate  may  be  agreed 
upon  m  writing. 

WEST  VIRGINIA. —  Legal  interest,  six  per  cent.  Contracts  for  a 
greater  amount  are  void  as  to  the  excess. 

WISCONSIN. —  Legal  interest,  six  per  cent ;  but  parties  may  agree 
in  writing  upon  a  rate  not  exceeding  ten  per  cent.  No  interest  can  be  col- 
lected on  usurious  contracts,  and,  if  excessive  interest  be  paid,  treble  the 
amount  thereof  may  be  recovered,  if  sued  for  within  one  year. 

WYOMING. —  Legal  interest,  twelve  per  cent.  Any  rate  may  be  agreed 
upon  in  writing. 


312  THE  LAW  OF  PLACE. 


CHAPTER  XXIV. 

THE    LAW    OF     PLACE. 
SECTION    I. 

WHAT  IS  MEANT  BY  THE  LAW  OF  PLACE. 

If  either  of  the  parties  to  a  contract  is  not  at  home,  or  if 
both  are  not  at  the  same  home,  when  they  enter  into  the  con- 
tract, or  if  it  is  to  be  executed  abroad,  or  if  it  comes  into  Htiga- 
tion  before  a  foreign  tribunal,  then  the  rights  and  the  obHgations 
of  the  parties  may  be  affected  either  by  the  law  of  the  place 
of  the  contract,  or  by  the  law  of  the  domicil  or  home  of  a 
party,  or  by  the  law  of  the  place  where  the  thing  is  situated 
to  which  the  contract  refers,  or  by  the  law  of  the  tribunal 
before  which  the  case  is  litigated.  All  of  these  are  commonly 
included  in  the  Latin  phrase  lex  loci,  or,  as  the  phrase  is  trans- 
lated, the  Law  of  Place. 

It  is  obvious  that  this  law  must  be  of  great  importance 
wherever  citizens  of  distinct  nations  have  much  commercial 
intercourse  with  each  other.  In  this  country  it  has  an  especial 
and  very  great  importance,  from  the  circumstance  that,  while 
the  citizens  of  the  whole  country  have  at  least  as  much  business 
connection  with  each  other  as  those  of  any  other  nation,  our 
country  is  composed  of  forty-four  separate  and  independent 
sovereignties,  which  are,  for  most  commercial  purposes,  regarded 
by  the  law  as  foreign  to  each  other. 

SECTION  II. 

THE   GENERAL   PRINCIPLES    OF   THE   LAW    OF    PLACE. 

The  general  principles  upon  which  the  law  of  place  depends 
are  four.     First,  every  sovereignty  can  bind,  by  its  laws,  all  per- 


GEXERAL  PRIXCIPLES  OF  THE  LAW  OF  PLACE.     313 

sons  and  all  things  within  the  limits  of  the  State.  Second,  no 
law  has  any  force  or  authority  of  its  own,  beyond  those  limits. 
Third,  by  the  comity  or  courtesy  of  nations, — aided  in  our  case 
as  to  the  several  States,  by  the  peculiar  and  close  relation 
between  the  States,  and  for  some  purposes  by  a  constitutional 
provision, — the  laws  of  foreign  States  have  a  qualified  force  and 
influence. 

The  fourth  rule  is  perhaps  that  of  the  most  frequent  appli- 
cation.  It  is,  that  a  contract  which  is  not  valid  where  it  is  made 
is  valid  nowhere  else  ;  and  one  which  is  valid  where  it  is  made  is 
valid  everywhere.  Thus  a  contract  made  in  ^Massachusetts,  and 
there  void  because  usurious,  was  sued  in  New  Hampshire  and 
held  to  be  void  there,  although  the  law  of  Xew  Hampshire  would 
not  have  avoided  it  if  it  had  been  made  there.  But  courts  do 
not  take  notice  of  foreign  revenue  laws,  and  v/ill  enforce  foreign 
contracts  made  in  violation  of  them.  If  contracts  are  made 
only  orally,  where  by  law  they  should  be  in  writing,  they 
cannot  be  enforced  elsewhere  where  writing  is  not  required  ; 
but  if  made  orally  where  writing  is  not  required,  they  can 
be  enforced  in  other  countries  where  such  contracts  should  be 
in  writing.  The  rule,  that  a  contract  which  is  valid  where  it 
is  made  is  valid  everywhere,  is  applicable  to  contracts  of  mar- 
riage. 

As  contracts  relate  either  to  movables  or  immovables,  or,  to 
use  the  phraseology  of  our  own  law,  to  personal  property  or  to 
real  property,  the  following  distinction  is  taken.  If  the  contract 
refers  to  personal  property  (which  never  has  a  fixed  plac6,  and 
is  therefore  called,  in  some  systems  of  law,  movable  property), 
the  place  of  the  contract  governs  by  its  law  the  construction 
and  effect  of  the  contract.  But  if  the  contract  refers  to  real 
property,  it  is  construed  and  applied  by  the  law  o^  the  place 
where  that  real  property  is  situated,  without  reference,  so  far  as 
the  title  is  concerned,  to  the  law  of  the  place  of  the  contract. 
Hence,  the  title  to  land  can  only  be  given  or  received  as  the  law 
of  the  place  where  the  land  is  situated  requires  and  determines. 
And  it  has  been  said  that  the  same  rule  may  properly  apply  to 
all  other  local  stock  or  funds,  although  of  a  personal  nature,  or 
so  made  by  the  l^^cal  law,  such  as  bank  stock,  insurance  stock, 


3H 


THE  LAW  OF  PLACE. 


manufacturing  stock,  railroad  shares,  and  other  incorporeal 
property,  owing  its  existence  to,  or  regulated  by  peculiar  local 
laws  ;  and  therefore  no  effectual  transfer  can  be  made  of  such 
property,  except  in  the  manner  prescribed  by  the  local  regula- 
tions. 

As  to  the  capacity  of  a  person  to  enter  into  contracts,  it  is 
undoubtedly  the  general  rule,  that  this  is  determined  by  the  law 
of  his  domicil  ;  and  whatever  that  permits  him  to  do  he  may  do 
anywhere. 

SECTION  III. 

THE    PLACE    OF   THE    CONTRACT. 

A  CONTRACT  is  made  wJien  both  parties  agree  to  it,  and  not 
before.  It  is  therefore  made  zvhcre  both  parties  agree  to  it,  if 
this  is  one  place.  But  if  the  contract  be  made  by  letter,  or  by 
separate  signatures  to  an  instrument,  the  contract  is  then  made 
where  that  signature  is  put  to  it,  or  that  letter  is  written,  which 
in  fact  completes  the  contract.  But  this  rule  is  subject  to  a 
very  important  qualification,  when  the  contract  is  made  in  one 
place,  and  is  to  be  performed  in  another  place  ;  for  then,  in 
general,  the  lav/  of  this  last  place  must  determine  the  force  and 
effect  of  the  contract,  for  the  obvious  and  strong  reason,  that 
parties  who  agreed  that  a  certain  thing  should  be  clone  in  a 
certain  place  intended  that  a  thing  should  be  done  there, 
which  was  lawful  there,  and  therefore  bargained  with  refer- 
ence to  the  laws  of  the  place,  not  in  which  they  stood,  but  in 
which  they  were  to  act.  This  principle  has  been  applied  to 
an  ante-nuptial  contract,  and  it  was  held,  that  Vv^hen  parties 
marry  in  reference  to  the  laws  of  another  country  as  their 
intended  domicil,  the  law  of  the  intended  domicil  governs  the 
construction  of  their  marriage  contract  as  to  the  rights  of  per- 
sonal property. 

But,  for  many  commercial  transactions,  both  of  these  rules 
seem  to  be  in  force  ;  or  rather  to  be  blended  in  such  a  way  as  to 
give  the  parties  an  option  as  to  what  shall  be  the  place  of  the 
contract,  and  what  the  rule  of  law  which  shall  apply  to  it.  Thus, 
a  note  written  in  New  York,  and  expressly  payable  in  New  York, 
is,  to  .ill  inten<is  and  purposes,  a  New  York  note ;  and  if  more 


DOMICIL.  3  1 5 

than  seven  per  cent,  interest  was  promised,  it  would  be  usurious, 
whatever  was  the  domicil  of  the  parties.  If  made  in  New  York, 
and  no  place  of  payment  is  expressed,  it  is  payable  and  may  be 
demanded  anywhere,  but  would  still  be  a  New  York  note.  But 
if  made  in  New  York,  but  expressly  payable  in  Boston  (where 
any  amount  of  interest  may  be  agreed  for),  and  promised  to  pay 
ten  per  cent,  interest,  when  payment  of  the  note  was  demanded 
in  Ijoston,  the  promise  of  interest  would  be  held  valid.  So,  if 
the  note  were  made  in  New  York,  payable  in  Boston,  and  prom- 
ising to  pay  ten  per  cent,  interest,  it  would  not  be  usurious. 

In  other  words,  if  a  note  is  made  in  one  place,  but  is  payable 
in  another,  the  parties  have  their  option  to  make  it  bear  the 
interest  which  is  lawful  in  either  place. 

If  the  contract  be  entered  into  for  money,  and  is  made  in  one 
place  but  is  payable  at  another  place  on  a  day  certain,  and  no 
interest  be  stipulated,  and  payment  be  delayed,  interest  by  way 
of  damages  shall  be  allowed,  according  to  the  law  of  the  place 
of  payment,  where  the  money  may  be  supposed  to  have  been 
required  by  the  creditor  for  use,  and  where  he  might  be  supposed 
to  have  borrowed  money  to  supply  the  deficiency  thus  occurring, 
and  to  have  paid  the  rate  of  interest  of  that  country.  If  a  note 
made  in  New  York  and  payable  in  Massachusetts  were  demanded 
in  Massachusetts  and  unpaid,  and  afterwards  put  in  suit  in  Mas- 
sachusetts, and  personal  service  made  on  the  promisor  there,  I 
should  say  that  any  interest  which  it  bore  should  be  recovered, 
provided  it  were  lawful  in  Ivlassachusetts.  And  indeed,  generally, 
that  such  a  note,  being  made  in  good  faith,  might  always  bear 
any  interest  lawful  vv-here  it  was  payable.  But  a  note  made  in 
a  State  where  tlie  law  permitted  only  alow  interest,  and  intended 
in  fact  to  be  paid  in  that  State,  but  written  payable  in  some 
State  permitting  higher  interest,  merely  to  get  this  higher  inter- 
est, could  not  by  this  trick  escape  the  usury  laws  of  the  State 
where  it  was  made,  and  get  the  higher  interest. 

SECTION  IV. 

DOMICIL. 

It  is  sometimes  very  important  to  determine  wdiere  a  person 
has  his  domicil,  or   Home.     In  t;eneral.  it  is  his  residence  ;  or 


3i6  THE  LAW  OF  PLACE. 

that  country  in  which  he  permanently  resides.  He  may  change 
it  by  a  change  of  place  botJi  in  fact  and  intent,  but  not  by  either 
alone.  Thus,  a  citizen  of  New  York,  going  to  London  and 
remaining  there  a  long  time,  but  without  the  intention  of  relin- 
quishing his  home  in  New  York,  does  not  lose  that  home. 
And,  if  he  stays*  in  New  York,  his  intention  to  live  and  remain 
abroad  does  not  affect  his  domicil  until  he  goes  in  fact. 

He  may  have  his  legal  domicil  in  one  place  and  yet  spend  a 
very  large  part  of  his  time  in  another.  But  he  cannot  have 
more  than  one  domicil.  His  words  or  declarations  are  not  the 
only  evidence  of  his  intent ;  and  they  are  much  stronger  evi- 
dence when  against  his  interest  than  when  they  are  in  his  favor. 
Thus,  one  goes  from  Boston  to  England.  If  he  goes  intending 
not  merely  to  travel,  but  to  change  his  residence  permanently, 
and  not  to  return  to  this  country  unless  as  a  visitor,  he  changes 
his  domicil  from  the  day  that  he  leaves  this  country.  Let  us 
suppose,  however,  that  he  is  still  regarded  by  the  assessors  as 
residing  in  Boston,  although  travelling  abroad,  and  is  heavily 
taxed  accordingly.  If  he  can  prove  that  he  has  abandoned  his 
original  home,  he  escapes  from  the  tax  which  he  must  other- 
wise pay.  Now,  his  declarations  that  he  has  no  longer  a  home 
here,  and  that  his  residence  is  permanently  fixed  in  England,  and 
the  like,  would  be  very  far  from  conclusive  in  his  favor,  and  could 
indeed  be  hardly  received  as  evidence  at  all,  unless  they  were 
confirmed  by  facts  and  circumstances.  But  if  it  could  be  shown 
that  he  had  constantly  asserted  that  he  was  still  an  American, 
that  he  had  no  other  permanent  residence,  no  home  but  that 
which  he  had  temporarily  left  as  a  traveller,  such  declarations 
would  be  almost  conclusive  against  him.  In  general,  such  a 
question  would  be  determined  by  all  the  words  and  acts,  the 
arrangement  of  property  at  home,  the  length  and  the  char- 
acter of  the  residence  abroad,  and  all  the  acts  and  circumstances 
which  would  indicate  the  actual  intention  and  understanding  of 
the  party. 

Two  cases  have  occurred  in  the  city  of  Boston  which  illus- 
trate this  question.  In  one,  a  citizen  of  Ijoston,  who  had  been  at 
school  in  the  city  of  Edinburgh  when  a  boy,  and  formed  a  pre- 
dilection for  that  place  as   a  residence,  and  had  expressed   a 


DOMICIL. 


17 


determination  to  reside  there  if  lie  ever  should  have  the  means 
of  so  doing,  removed  v^'ith  his  family  to  that  city  in  1836,  declar- 
ing, at  the  time  of  his  departure,  that  he  intended  to  reside 
abroad,  and  that,  if  he  should  return  to  the  United  States,  he 
should  not  live  in  Boston.  He  resided  in  Edinburgh  and  vicin- 
ity, as  a  housekeeper,  taking  a  lease  of  an  estate  for  a  term  of 
years,  and  endeavored  to  engage  an  American  to  enter  his 
family  for  two  years  as  instructor  of  his  children.  Before  he  le.t: 
Boston  he  made  a  contract  for  the  sale  of  his  mansion-house 
and  furniture  there,  but  shortly  afterward  procured  said  con- 
tract to  be  annulled  (assigning  as  his  reason  therefor,  that,  in 
case  of  his  death  in  Europe,  his  wife  might  wish  to  return  to 
l^oston),  and  let  his  house  and  furniture  to  a  tenant.  Held,  that 
he  had  changed  his  domicil,  and  was  not  liable  to  taxation  as  an 
inhabitant  of  Boston  in  1837.  In  the  other  case,  a  native  inhab- 
itant of  Boston,  intending  to  reside  in  France  with  his  family, 
departed  for  that  country  in  June,  1836,  and  was  followed  by 
his  family  about  three  months  afterwards.  His  dwelling-house 
and  furniture  were  leased  for  a  year,  and  he  hired  a  house  for  a 
year  in  Paris.  At  the  time  of  his  departure  he  intended  to 
return  and  resume  his  residence  in  Boston,  but  had  not  fixed 
on  any  time  for  his  return.  He  returned  in  about  sixteen 
months,  and  his  family  in  about  nine  months  afterwards.  Held, 
that  he  continued  to  be  an  inhabitant  of  Boston,  and  that  he  was 
rightly  taxed  there  during  his  absence,  for  his  person  and  per- 
sonal property.  This  last  case  was  distinguished  from  the  for- 
mer by  the  different  intent  of  the  parties  upon  their  departure 
from  home. 

It  is  a  general  rule,  that,  if  one  has  a  domicil,  he  retains 
it  until  he  acquires  another.  Thus,  if  a  seaman,  without 
family  or  property,  sails  from  the  place  of  his  nativity,  which 
may  be  considered  his  domicil  of  origin,  although  he  may 
return  only  at  long  intervals,  or  even  be  absent  for  many  years, 
yet,  if  he  does  not,  by  some  actual  residence  or  other 
means,  acquire  a  domicil  elsewhere,  he  retains  his  domicil  of 
origin. 

It  seems  to  be  agreed  that  one  may  dwell  for  a  consider- 
able time,  and  even  regularly  during  a  large  part  of  the  year. 


3 1 8  THE  LA  IV  OF  SHIPPING. 

in  one  place,  or  even  in  one  State,  and  yet  have  his  clomicil  in 
another. 

A  woman  marrying  takes  her  husband's  domicil,  and  changes 
it  with  him.  A  minor  child  has  the  domicil  of  his  father,  or  of 
his  mother  if  she  survives  his  father ;  and  the  surviving  parent, 
with  whom  a  child  lives,  by  changing  his  or  her  own  domicil  in 
good  faith,  changes  that  of  the  child.  And  even  a  guardian  has 
the  same  power. 


CHAPTER  XXV. 
THE  LAW  07  SHIPPING. 


SECTION  I. 

THE    OWNERSHIP    AND   TRANSFER    OF   SHIPS. 

The  Law  of  Shipping  may  be  considered  under  three  divis- 
ions. First,  as  to  ownership  and  transfer  of  ships.  Second,  as 
to  the  employment  of  ships  as  carriers  of  goods,  or  of  passen- 
gers, or  both.  Third,  as  to  the  navigation  of  ships.  I  begin 
with  the  first  topic. 

Ships  are  personal  property ;  or,  in  other  words,  a  ship  is  a 
chattel  ;  and  yet  its  ownership  and  transfer  are  regulated  in  this 
country  by  rules  quite  analogous  to  those  which  apply  to  real 
property. 

The  Constitution  of  the  United  States  gives  to  Congress  the 
power  to  enact  laws  for  the  regulation  of  commerce.  In  execu- 
tion of  this  power,  acts  were  passed  in  1792,  and  immediately 
after,  which  followed  substantially  the  Registry  and  Navigation 
Laws  of  England,  some  of  which  had  been  in  force  about  a  cen- 
tury and  a  half.  The  English  laws  were  intended  to  secure 
English  commerce  to  English  men  and  English  ships  ;  and  it 
was  supposed  that  the  commercial  prosperity  of  England  was 
in  a  great  measure  due  to  them.  The  laws  on  this  subject  now 
in  force  will  be  found  in  the  Revised  Statutes  of  the  L^nited 
States,  §  4, 1 3 1  et  seq. 

To  secure  the  evidence  of  the  American  character  of  a 
vessel,  the  statutes  provide  for  an  exact  system  of  registra- 
tion in  the  custom-house.     There  is  no  requirement  of  regis- 


THE  OWNERSHIP  AND  TRANSFER  OF  SHIPS.       31^ 

tration.  The  law.  does  not  say  that  a  sliip  shall  or  must  be 
registered,  but  that  certain  ships  or  vessels  may  be  ;  and,  if  they 
are  registered,  they  shall  have  certain  privileges.  And  the  dis- 
advantage of  being  without  registry  operates  as  effectually  to 
make  registration  universal,  as  a  positive  requirement  with  a 
heavy  penalty  could  do. 

The  ships  which  may  be  registered  are  those  already  regis- 
tered December  31st,  1792,  under  the  act  of  September,  1789. 
those  built  within  the  United  States,  and  owned  wholly  by  citi- 
zens thereof ;  and  those  captured  and  condemned  as  prizes,  or 
adjudged  forfeited  by  violation  of  law,  if  at  the  time  of  registry 
they  are  owned  v.diolly  by  citizens  of  this  country.  No  ship 
can  be  registered  if  an  owner  or  part-owner  usually  resides 
abroad,  although  he  is  a  citizen,  unless  he  is  a  consul  of  the 
United  States,  or  agent  for,  and  a  partner  in  a  mercantile  house 
established  and  doing  business  here  ;  nor  if  the  master  be  not 
a  citizen  of  the  United  States ;  nor  if  the  owner  or  part- 
owner  be  a  naturalized  citizen,  and  reside  in  the  country  whence 
he  came  more  than  a  year,  or  in  any  foreign  country  more  than 
two  years,  unless  he  be  consul  or  public  agent  of  the  United 
States.  But  a  ship  which  has  lost  the  benefits  of  registry  by 
the  non-residence  of  an  owner,  in  such  a  case  may  be  regis' 
tered  anew  if  she  become  the  property  of  a  resident  citizen, 
by  bond  fide  purchase ;  nor  can  a  ship  be  registered  which 
has  been,  at  any  time,  the  property  of  an  alien,  unless  she 
becomes  the  property  of  the  original  owner  or  his  represen- 
tative. 

Sometimes  Congress,  by  special  acts,  permits  the  registra- 
tion, as  an  American  ship,  of  a  vessel  which  has  become,  by 
purchase,  American  property.  If  a  registered  American  ship  be 
sold  or  transferred,  in  whole  or  in  part,  to  an  alien,  the  cer- 
tificate of  registry  must  be  delivered  up,  or  the  vessel  is 
forfeited ;  but  if,  in  case  of  a  sale  in  part,  it  can  be  shown  that 
any  owner  of  a  part  not  so  sold  was  ignorant  of  the  sale,  his 
share  shall  not  be  subject  to  such  forfeiture.  As  soon  as  a  reg- 
istered vessel  arrives  from  a  foreign  port,  her  documents  must 
be  deposited  with  the  collector  of  the  port  of  arrival,  and  the 
owner,  or,  if  he  does  not  reside  within  the  district,  the  master. 


320 


THE  LA  W  OF  SHIPPING. 


must  make  oath  that  the  register  contains  the  names  of  all 
persons  who  are  at  that  time  owners  of  the  ship,  and  at  the 
same  time  report  any  transfer  of  the  ship,  or  of  any  part,  that 
has  been  made  within  his  knowledge  since  the  registry ;  and 
also  declare  that  no  foreigner  has  any  interest  in  the  ship.  If 
a  register  be  issued  fraudulently,  or  with  the  knowledge  of  the 
owners,  for  a  ship  not  entitled  to  one,  the  register  is  not  only 
void,  but  the  ship  is  forfeited.  If  a  new  register  is  issued,  the 
old  one  must  be  given  up  ;  but  where  there  is  a  sale  by  process 
of  law,  and  the  former  owners  withhold  the  register,  the  Secre- 
tary of  the  Treasury  may  authorize  the  collector  to  issue  a  new 
one.  If  a  ship  be  transferred  while  at  sea,  or  abroad,  the  old 
register  must  be  given  up,  and  all  the  requirements  of  law,  as 
to  registry,  etc.,  must  be  complied  with,  within  three  days  after 
her  arrival  at  the  home  port. 

Important  exclusive  privileges  have  been  granted  to  regis- 
tered vessels  of  the  United  States.  Some  of  these,  relating  to 
foreign  commerce,  have  since  been  withdrawn,  but  Rev.  Stat,  of 
U.  S.,  §  4347  still  provides  that  no  merchandise  shall  be  carried 
from  port  to  port  in  the  United  States,  by  any  foreign  vessel, 
unless  it  formed  a  part  of  its  original  cargo. 

A  ship  that  is  of  twenty  tons  burden,  to  be  employed  in  the 
fisheries,  or  in  the  coasting  trade,  need  not  be  registered,  but 
must  be  enrolled  and  licensed  accordingly.  If  under  twenty 
tons  burden,  she  need  only  be  licensed.  If  licensed  for  the 
fisheries,  she  may  visit  and  return  from  foreign  ports,  having 
stated  her  intention  of  doing  so,  and  being  permitted  by  the 
collector.  And  if  registered,  she  may  engage  in  the  coasting 
trade  or  fishery,  and  if  licensed  and  enrolled,  she  may  become  a 
registered  ship,  subject  to  the  regulations  provided  for  such 
cases. 

A  ship  that  is  neither  registered  nor  licensed  and  enrolled 
can  sail  on  no  voyage  with  the  privilege  or  protection  of  a 
national  character  or  national  papers.  If  she  engages  in  foreign 
trade,  or  the  coasting  trade,  or  fisheries,  she  is  liable  to  for- 
feiture; and  if  she  have  foreign  goods  on  board,  must  at  all 


THE  TRAXSFER  OF  PROPERTY  IX  A  SHIP.  -521 

events  pay  the  tonnage  duties  leviable  on  foreign  ships.  In 
chese  days,  no  ship  engaged  in  honest  business,  and  belonging 
tD  a  civilized  people,  is  met  with  on  the  ocean,  without  having 
the  regular  papers  which  attest  her  nationality,  unless  she  has 
lost  them  by  some  accident. 

/ 

SECTION   II. 

THE   TRAXSFER   OF   PROPERTY   IX   A    SHIP. 

Revised  Statute,  §  4170,  provides,  that,  "in  every  case 
of  sale  or  transfer,  there  shall  be  some  instrument  in  writing,  in 
the  nature  of  a  bill  of  sale,  which  shall  recite  at  length  the  said 
certificate;  otherwise  the  said  ship  or  vessel  shall  be  incapable 
of  being  registered  anew."  It  follows,  therefore,  that  a  merely 
oral  transfer,  although  for  valuable  consideration,  and  followed 
by  possession,  gives  the  transferee  no  right  to  claim  a  new 
register  setting  forth  his  ownership.  But  this  is  all.  There  is 
nothing  in  this  statute  to  prevent  the  property  from  passing  tj 
and  vesting  in  such  transferee.  It  is,  however,  unquestionablf 
a  principle  of  the  maritime  law  generally,  that  property  in  a  shiji 
should  pass  by  a  written  instrument.  And  as  this  principhj 
seems  to  be  adopted  by  the  statute,  the  courts  have  sometimes 
almost  denied  the  validity  of  a  merely  parol  transfer.  The 
weight  of  authority  and  of  reason  is,  however,  undoubtedly  \r\ 
favor  of  the  conclusion  stated  by  Judge  Story,  that  "the  re.":- 
istry  acts  have  not,  in  any  degree,  changed  the  common  law  £s 
to  the  manner  of  transferring  this  species  of  property."  ",  t 
would  follow,  therefore,  that  such  transfer  would  be  valid,  and 
would  pass  the  propertv. 

Rev.  Stat.,  §  4192,  provides  "that  no  bill  of  sale,  mortgage, 
hypothecation,  or  conveyance  of  any  vessel  or  part  of  any  vessel 
of  the  United  States,  shall  be  valid  against  any  person  othe 
than  the  grantor  or  mortgagor,  his  heirs  and  devisees,  and  pff 
sons  having  actual  notice  thereof;  unless  such  bill  of  sale, 
mortgage,  hypothecation,  or  conveyance  be  recorded  in  theoflfice 
of  the  collector  of  the  customs  where  such  vessel  is  registered  or 
21 


322  THE  LAW  OF  SHIPPING. 

enrolled."  Then  follows  an  exception  in  favor  of  liens  by  bot- 
tomry,  and  in  subsequent  sections  are  provisions  for  recording 
by  the  collector,  and  giving  certificates,  etc. 

This  statute  has  no  effect,  that  I  perceive,  upon  oral  trans- 
lers,  excepting  that,  as  they  cannot  be  recorded,  their  operation 
IS  limited  to  the  grantors  and  those  who  have  actual  notice. 
Where  the  transfer  is  by  bill  of  sale,  the  record  of  this,  under 
the  late  statute,  is  notice  to  all  the  world.  But  in  most  of  our 
States  there  are  already  provisions  for  the  record  of  mortgages 
of  personal  property,  and  the  question  arises  how  these  are 
affected  by  this  statute  of  the  United  States.  I  should  say  that 
it  controlled  and  superseded  the  State  statute,  so  as  to  make 
that  unnecessary  and  ineffectual ;  and  therefore  a  record  in  the 
custom-house  only  would  be  sufficient,  and  a  record  under  the 
State  Law  would  affect  only  those  who  had  actual  knowledge 
cf  it. 

As  a  ship  is  a  chattel,  a  transfer  of  it  should  be  accompanied 
by  a  delivery  of  possession.  Actual  delivery  is  sometimes  im. 
possible  where  a  ship  is  at  sea;  and  the  statute  of  1850  makes 
the  record  of  the  transfer  equivalent  to  change  of  possession. 
If  there  be  no  record,  possession  should  be  taken  as  soon  as 
possible ;  and  prudence  would  still  require  the  same  course  in 
case  of  transfer  by  writing  and  record. 

By  the  word  "ship,"  and  still  more  by  the  phrase  "ship  and 
her  appurtenances,"  or  "apparel,"  or  "furniture,"  everything 
would  pass  which  was  distinctly  connected  with  the  ship,  and  is 
on  board  of  her,  and  fastened  to  her  if  that  be  usual,  and  needed 
for  her  navigation  or  for  her  safety.  Kentledge,  a  valuable  kind 
of  permanent  ballast,  has  been  held  to  pass  with  the  ship ;  so 
have  a  rudder  and  cordage  prepared  for  a  vessel,  but  not  yet 
attached  to  her,  and  not  quite  finished ;  and  so  would  a  boat, 
anchors,  etc.,  generally.  But  the  answer  to  the  question,  What 
is  part  of  the  ship.''  must  always  depend  somewhat  upon  the 
words  of  the  instrument,  and  upon  the  circumstances  of  the  case 
and  the  intention  of  the  parties. 

A  sale  by  the  decree  of  any  regular  court  of  admiralty,  with 
due  notice  to  all  parties,  and  with  proper  precautions  to  protect 
the  interests  cf  all,  and  to  guard  against  fraud  or  precipitancy. 


PART-OWNERS.  323 

would  undoubtedly  be  acknowledged  by  courts  of  admiralty  of 
every  other  nation  as  transferring  the  property  effectually. 

SECTION  IIT. 

PART-OWNERS. 

Two  or  more  persons  may  become  part-owners  of  a  ship,  in 
either  of  three  ways.  They  may  build  it  together,  or  join  in 
purchasing  it,  or  each  may  purchase  his  share  independently  of 
the  others.  In  either  case  their  rights  and  obligations  are  the 
same. 

If  the  register,  or  the  instrument  of  transfer,  or  other  equiv- 
alent evidence,  do  not  designate  specific  and  unequal  pro- 
portions, they  will  be  presumed  to  own  the  ship  in  equal  shares. 

Part-owners  are  not  necessarily  or  usually  partners.  But  a 
ship,  or  any  part  of  a  ship,  may  constitute  a  part  of  the  stock  or 
capital  of  a  copartnership ;  and  then  it  will  be  governed,  in  all 
respects,  by  the  law  of  partnership. 

A  part-owner  may  at  any  time  sell  his  share  to  whom  he  will. 
Ikit  he  cannot  sell  the  share  of  any  other  part-owner,  without 
his  authority.  If  he  dies,  his  share  goes  to  his  representatives, 
and  not  to  the  surviving  part-owners. 

A  majority  of  the  part-owners  may,  generally,  manage  and 
direct  the  employment  of  the  property  at  their  discretion.  But 
a  court  of  admiralty  will  interfere  and  do  justice  between  them, 
and  prevent  either  of  the  part-owners  from  inflicting  injury  upon 
the  others. 

One  part-owner  may,  in  the  absence  of  the  rest,  and  without 
prohibition  from  them,  manage  the  ship,  as  for  himself  and  for 
them.  And  the  contracts  he  enters  into,  in  relation  to  the 
employment  or  preservation  of  the  ship,  bind  all  the  part  owners 
in  favor  of  an  innocent  third  party. 

Formerly  all  the  part-owners  were  liable,  but  by  act  of  Con- 
gress of  June  26,  1884,  it  is  now  provided  "that  the  individual 
liability  of  a  ship-owner  shall  be  limited  to  the  proportion  of 
any  or  all  debts  and  liabilities  that  his  individual  share  of  the 
vessel  bears  to  the  whole  ;  and  the  aggregate  liabilities  of  all 
the  owners  of  a  vessel  on  account  of  the  same  shall  not  exceed 


3^4 


THE  LA  IV  OF  SHIPPING. 


the  value  of  such  vessel  and  freight  pending.  Provided  that 
this  provision  shall  not  affect  the  liability  of  any  owner  incurred 
previous  to  the  passage  of  this  act,  nor  prevent  any  claimant 
from  joining  all  the  owners  in  one  action;  nor  shall  the 
same  apply  to  wages  due  to  persons  employed  by  said  sLip 
owners." 

If  it  can  be  clearly  shown,  however,  that  especial  credit  was 
given,  and  intended  to  be  given,  to  one  part-owner  personall}; 
to  the  exclusion  of  the  others,  then  the  others  cannot  beholden. 
If  the  goods  were  charged  to  "ship"  so  and  so,  or  to  "ship 
and  owners,"  this  would  tend  strongly  to  show  that  it  was 
intended  to  supply  the  goods  on  the  credit  of  all  the  owners. 
If  charged  to  some  one  owner  alone,  this  would  not  absolutely 
prove  that  credit  was  intentionally  given  to  him  exclusively- 
But  it  would  raise  a  presumption  to  that  effect  which  could  bf, 
rebutted  only  by  showing  that  no  other  owner  was  known ;  on 
by  some  other  evidence  which  disproved  the  intention  of  dis' 
charging  the  other  part-owners. 

So,  if  the  note,  negotiable  or  otherwise,  of  one  part-owne.t 
were  taken  in  payment,  if  the  promisor  refused  to  pay,  tht; 
others  would  be  liable,  unless  they  could  show  a  distinct  bargai.i 
by  which  they  were  exonerated. 

Commonly,  the  "  ship's  husband,"  as  the  agent  cf  all  the 
owners  for  the  management  of  the  ship  has  long  been  called,  in 
one  of  the  part-owners.  He  may  be  appointed  in  writing  or 
otherwise.  His  duties  are,  in  general,  to  provide  for  the  con 
plete  equipment  and  repair  of  the  ship,  and  take  care  of  her 
while  in  port ;  to  see  that  she  is  furnished  with  all  regular  and 
proper  papers  ;  to  make  proper  contracts  for  freight  or  j^assage, 
and  collect  the  receipts  and  make  the  disbursements  proper  on 
these  accounts.  For  these  things  he  has  all  the  necessary 
powers.  But  he  cannot,  without  special  power,  insure  for  the 
rest,  nor  buy  a  cargo  for  them,  nor  borrow  money,  nor  give  up 
their  lien  on  the  cargo  for  the  freight,  nor  delegate  his  authority. 

Where  he  acts  within  his  powers,  a  ship's  husband  binds  all 
his  principals,  that  is,  all  the  part-owners.  But  a  third  party 
may  deal  with  him  on  his  personal  credit  alone  ;  and  if  the 
part-owners,  believing  this,  and  authorized  to  believe  it  by  any 


THE  CONTRACT  OF  BOTTOMRY. 


!25 


acts  or  words  of  the  third  party,  settle  their  accounts  with  the 
ship's  husband  accordingly,  this  third  party  cannot  now  estab- 
lish a  claim  against  them  to  their  detriment.  If  a  ship's 
husband  is  not  a  part-owner,  all  the  part-owners  are  liable  to 
him,  each  for  the  whole  amount.  If  he  is  a  part-owner,  each 
of  the  others  is  liable  to  him  for  his  share  of  the  expense 
incurred.  The  "  ship's  husband  "  is  called  in  the  Statutes  of 
the  United  States  the  "  managing  owner." 

SECTION  IV. 

THE   LIABILITY    OF   MORTGAGEES. 

A  MORTGAGEE  of  a  ship,  who  is  in  possession,  is,  in  general, 
I'able  for  supplies,  repairs,  etc.,  in  the  same  way  as  an  owner. 
1  >ut  if  he  has  not  taken  possession,  he  is  not  liable  for  supplies 
(.  r  repairs  merely  on  the  ground  that  his  security  is  strength- 
ened by  whatever  preserves  or  increases  the  value  of  the 
vessel.  Nor  can  he  be  made  liable,  except  by  some  act  or 
words  of  his  own,  which  show  that  credit  was  properly  given  to 
him,  or  that  he  has  come  under  a  valid  engagement  to  assume 
this  responsibility. 

SECTION  V. 

THE  CONTRACT  OF  BOTTOMRY. 

By  this  contract,  a  ship  is  hypothecated  (which  means 
pledged)  as  security  for  money  borrowed.  The  form  of  this 
contract  varies  in  different  places,  and,  indeed,  in  the  same 
place.  Its  essentials  are  : — First,  that  the  ship  itself  is  bound 
for  the  payment  of  the  money.  Second,  that  the  money  is  to 
be  repaid  only  in  case  the  ship  performs  a  certain  voyage,  and 
arrives  at  its  destined  termination  in  safety ;  or,  as  it  is  some- 
times provided  in  modern  bottomries,  in  case  that  the  ship  is 
in  safety  on  a  certain  day ;  therefore,  if  the  ship  is  lost  before 
the  termination  of  the  voyage  or  the  expiration  of  the  period, 
no  part  of  the  money  is  due,  or,  as  is  sometimes  said,  the  whole 
debt  is  paid  by  the  loss.  As  the  lender  thus  consents  that  the 
repayment  of  the  money  shall  depend  upon  the  safety  of  the 
ship,  he  has  a  legal  right  to  charge  "  marine  interest,"  which 
means  as  much  more  than  legal  interest  as  will  serve  to  cover 
his  risk. 


326  THE  LAW  OF  SHIPPING. 

The  lender  may  require,  and  the  borrower  pay,  this  marine 
interest,  which  may  be  much  more  than  lawful  interest,  on  a 
bottomry  bond,  without  usury. 

If  the  interest  be  not  expressed  in  the  contract,  it  will 
generally  be  presumed  to  be  meant  and  included  in  the  sum 
named  as  principal. 

If,  by  the  contract,  the  lender  takes  more  than  legal  interest 
and  yet  the  money  is  to  be  paid  to  him  whether  the  ship  be  lost 
or  not,  this  is  not  a  contract  of  bottomry,  and  it  is  subject  to 
all  the  consequences  of  usury.  But  the  lender  may  take 
security  for  his  debt  and  marine  interest,  additional  to  the  ship 
itself,  provided  the  security  is  given,  like  the  ship  itself,  to 
make  the  payment  certain  when  it  becomes  clue  by  the  safety 
of  the  ship,  but  is  wholly  avoided  if  the  ship  be  lost ;  for 
then  the  lender  takes  the  risk  of  losing  the  whole,  principal 
and  interest,  by  the  loss  of  the  ship,  and  may  therefore  charge 
more  than  simple  interest. 

The  most  common  contracts  of  bottomry  are  those  entered 
into  by  the  master  in  a  foreign  port,  where  money  is  needed 
and  cannot  otherwise  be  obtained.  Therefore  the  security 
goes  with  the  ship,  and  the  debt  may  be  enforced,  as  soon  as  it 
is  payable,  against  the  ship,  wherever  the  ship  may  be.  But  in 
this  country,  these  contracts  are  frequently  made  by  the  owner 
himself,  in  the  home  port.  And  sometimes  they  are  nothing 
else  than  contrivances  to  get  more  than  legal  interest.  Thus, 
if  A  lends  to  B  $20,000  on  B's  ship  for  one  year,  at  fifteen  per 
cent,  interest,  conditioned  that,  if  the  ship  be  lost,  the  money 
shall  not  be  paid,  and  the  lender  insures  the  ship  for  three  per 
cent.,  he  gets  twelve  per  cent,  interest,  which  may  be  much 
more  than  the  legal  interest,  and  yet  incurs  no  risk.  If  such  a 
contract  were  obviously  and  certainly  merely  colorable,  and 
only  a  pretence  for  getting  usurious  interest,  the  courts  would 
probably  set  it  aside ;  but  it  might  be  difficult  to  show  this. 

If  the  money  is  payable  at  the  end  of  a  certain  voyage,  and 
the  owner  or  his  servant,  the  master  of  the  ship,  terminate  the 
voyage  sooner, — either  honestly,  from  a  change  in  their  plan, 
or  dishonestly,  by  intentional  loss  or  wreck, — the  money 
becomes  at  once  due. 


EMPLOYMENT  OF  A  SHIP  BY  THE  OWNER. 


7 


A  bottomry  bond  made  abroad  would  override  all  other  liens 
or  engagements,  except  the  claim  for  seamen's  wages,  and  the 
Jien  of  material  men  for  repairs,  and  supplies  indispensable  to 
the  safety  of  the  vessel.  The  reason  is,  that  a  bottomry  bond 
is  supposed  to  be  made  from  necessity,  and  to  have  provided 
the  only  means  by  which  the  ship  could  be  brought  home.  For 
the  same  reason,  a  later  bond  is  sustained  as  against  an  earlier 
and  the  last  against  all  before  it. 

The  lien  of  bottomry  depends  in  no  degree  on  possession, 
for  the  ship  may  go  all  over  the  world  with  the  bottomry 
security  attached  to  her ;  but  the  lender  ought  to  collect  the 
sum  due,  and  so  discharge  the  bond  as  soon  as  he  conveniently 
can  ;  and  therefore  an  unreasonable  delay  in  enforcing  it  will 
destroy  the  lien  ;  and  any  connivance  by  the  lender  at  any 
fraud  on  the  part  of  the  master  avoids  the  bond  entirely. 

SECTION  VI. 

THE   EMPLOYMENT   OF   A   SHIP   BY   THE    OWNER. 

An  owner  of  a  ship  may  employ  it  in  carrying  his  own 
goods,  or  those  of  another.  He  may  carry  the  goods  of  others, 
while  he  himself  retains  the  possession  and  direction  of  the 
ship  ;  or  he  may  lease  his  ship  to  others,  to  carry  their  goods. 
In  the  first  case,  he  carries  the  goods  of  others  on  freight : 
in  the  second,  he  lets  his  ship  by  charter-party.  We  shall  con 
sider  first  the  carriage  of  goods  on  freight. 

He  may  load  his  ship  as  far  as  he  can  with  his  own  goods, 
and  then  take  the  goods  of  others  to  fill  the  vacant  space  ;  or 
he  may  put  up  his  ship  as  "a  general  ship,"  to  go  from  one 
stated  port  to  another,  and  to  carry  the  goods  of  all  who  offer. 

It  may  be  remarked,  that  the  word  "freight"  is  used  in 
different  ways  ;  sometimes  to  designate  the  goods  or  cargo  that 
is  carried  ;  sometimes  to  denote  the  money  which  the  shipper 
of  the  goods  pays  to  the  owner  of  the  ship,  for  their  transporta- 
tion. Not  unfrequently,  when  the  word  is  used  in  this  latter 
sense,  the  word  "money"  is  added,  and  the  phrase  "freight- 
money  "  leaves  no  question  as  to  what  is  meant.  Sometimes 
a  ship-owner  who  lets  the  whole  burden  of  his  ship  to  another 


328  THE  LAW  OF  SHIPPING. 

is  said  to  carry  the  shipper's  goods  on  freight.  But  the  most 
commoa  meaning  of  the  word,  especially  in  law  proceedings,  is 
the  money  earned  by  a  ship  not  chartered  for  the  transportation 
of  the  goods  ;  and  in  this  sense  we  shall  use  it. 

Nearly  the  whole  law  of  freight  grows  out  of  the  ancient  and 
universal  principle  that  the  ship  and  the  cargo  have  reciprocal 
duties  or  obligations  towards  each  other,  and  are  reciprocally 
pledged  to  each  other  for  the  performance  of  these  duties.  In 
other  words,  not  only  is  the  owner  of  the  ship  bound  to  the 
owner  of  the  cargo,  as  soon  as  he  receives  it,  to  lade  it  properly 
on  board,  take  care  of  it  while  on  board,  carry  it  in  safety  (so 
far  as  the  seaworthiness  of  the  ship  is  concerned)  to  its  destined 
port,  and  there  deliver  it,  all  in  a  proper  way,  but  the  ship  itself 
is  bound  to  the  discharge  of  these  duties.  I'hat  is  to  say,  if,  by 
r  ;ason  of  a  failure  in  any  of  these  particulars,  the  shipper  of 
the  goods  is  damnified,  he  may  look  to  the  ship-owner  for  indem- 
nity ;  but  he  is  not  obliged  to  do  so,  because  he  may  proceed  by 
proper  process  against  the  ship  itself.  This  lien,  like  that  of 
bottomry,  is  not  dependent  upon  possession,  but  will  be  lost  by 
delay,  especially  if  the  vessel  passes  into  the  hands  of  a  pur- 
thaser  for  value  without  notice.  On  the  other  hand,  if  the  ship 
discharges  all  its  duties,  the  owner  may  look  to  the  shipper 
for  the  payment  of  his  freight  ;  but  is  not  obliged  to  do  so, 
because  he  may  keep  his  hold  upon  the  goods,  and  refuse  to 
deliver  them  until  the  freight  is  paid. 

The  party  who  sends  the  goods  may  or  may  not  be  the  owner 
of  them.  And  he  may  send  them  either  to  one  who  is  the 
owner ;  for  whom  the  sender  bought  them,  or  to  one  who  is  only 
the  agent  of  the  owner.  In  either  of  these  cases,  the  sender  is 
called  the  consignor  of  the  gr^'-ds,  and  the  party  to  whom  they 
are  sent  is  called  the  consignee.  The  sending  them  is  called 
the  consigning  or  the  consignment  of  them  ;  but  it  is  quite 
common  to  hear  the  goods  theniselves  called  the  consignment. 

The  rights  and  obligations  of  the  ship-owner  and  the  shipper 
are  stated  generally  in  an  instrument  of  which  the  origin  is  lost 
in  its  antiquity,  and  which  is  now  in  universal  use  among  com- 
mercial nations,  with  little  substantial  variety  of  form.  It  is 
called  the  Bill  of   Ladinir.     It  should  contain  the  names  of  the 


EMPLOYMENT  OF  A  SHIP  BY  THE  OUWER. 


;29 


consignor,  of  the  consignee  of  the  vessel,  of  the  master,  of  the 
place  of  departure,  and  of  the  place  of  destination  ;  also  the 
price  of  the  freight,  with  primage  and  other  charges,  if  any 
there  be,  and  either  in  the  body  of  the  bill  or  in  the  margin, 
the  marks  and  numbers  of  the  things  shipped,  with  sufficiem; 
precision  to  designate  and  identify  them. 

It  should  be  signed  by  the  master  of  the  ship,  who,  by  the 
strict  maritime  law,  has  no  authority  to  sign  a  bill  of  lading 
until  the  goods  are  actually  on  board.  There  is  some  relaxation 
of  this  rule  in  practice ;  but  it  should  be  avoided. 

Usually  one  copy  is  retained  by  the  master,  and  three  copies 
are  given  to  the  shipper  ;  one  of  them  he  usually  retains,  another 
he  sends  to  the  consignee  with  the  goods,  and  the  other  he 
5  ends  to  the  consignee  by  some  other  conveyance. 

The  delivery  of  the  goods  promised  in  the  bill  is  to  the  con- 
signee, or  his  assigns;  and  the  consignee  may  designate  his 
assigns  by  writing  on  the  back  of  the  bill,  "  Deliver  the  within- 
named  goods  to  A  B,"  and  signing  this  order ;  or  the  consignee 
may  indorse  the  bill  with  his  name  only  in  blank,  and  any  one 
who  acquires  an  honest  title  to  the  goods  and  to  the  bill  may 
write  over  the  signature  an  order  of  delivery  to  himself.  The 
consignee  has  this  power,  if  such  be  the  usage,  even  if  the  word 
"  assigns  "  be  omitted.  Such  indorsement  not  only  gives  the 
indorsee  a  right  to  demand  the  goods,  but  makes  him  the  owner 
of  the  goods. 

As  the  bill  of  lading  is  evidence  against  the  ship-owner  as  to 
the  reception  of  the  goods,  and  their  quantity  and  quality,  it  is 
common  to  say  "contents  unknown,"  or  "said  to  contain,  "  etc. 
But  without  any  words  of  this  kind,  the  bill  of  lading  is  not  con- 
clusive upon  the  ship-owner  in  favor  of  the  shipper,  because  he 
may  show  that  its  statements  were  erroneous  through  fraud  or 
mistake.  But  the  ship-owner,  or  master,  is  bound  much  more 
strongly  by  the  words  of  the  bill  of  lading,  in  favor  of  a  third 
party,  who  has  bought  the  goods  for  value  and  in  good  faith,  on 
the  credit  of  the  bill  of  lading.  In  a  case  which  occurred  in 
New  York,  the  court  said,  that,  as  between  the  shipper  of  the 
•goods  and  the  owner  of  the  vessel,  a  bill  of  lading  may  be 
explained  or  corrected  as  far  as  it  is  a  receipt ;  that  is,  as  to  the 


330 


THE  LA  VV  OF  SHI  FT  INC. 


quantity  of  the  goods  shipped,  and  the  Hke ;  but  as  between  the 
owner  of  the  vessel  and  an  assignee  of  the  bill,  for  a  valuable 
consideration,  paid  on  the  strength  of  the  bill  of  lading,  it  may 
not  be  explained  or  corrected  ;  because  the  master,  by  signing 
the  t)ill,  authorizes  the  purchaser  to  believe  the  goods  are  what 
the  bill  says  they  are. 

The  law-merchant  gives  to  the  ship,  as  we  have  seen,  a  lien 
en  the  goods  for  the  freight.  The  master  cannot  demand  the 
freight  without  a  tender  of  the  goods  at  the  proper  time,  in  the 
proper  way,  to  the  proper  person,  and  in  a  proper  condition  ; 
but  then  the  consignee  is  not  entitled  to  the  goods  v»dthout  pay- 
ing freight.  The  law  gives  this  lien,  whether  it  be  expressed  or 
not.  But  it  may  be  expressly  waived.  The  bill  of  lading,  or 
ither  evidence,  may  show  the  agreement  of  the  parties  that  the 
jj'oods  should  be  delivered  first,  and  the  freight  not  be  payable 
until  a  certain  time  afterwards  ;  and  such  an  agreement  is  in 
general  a  waiver  of  the  lien. 

Nevertheless,  if  it  seemed  that  the  ship-owner  did  not  intend 
to  give  up  his  security  on  the  goods,  a  court  of  admiralty  would 
to  construe  such  an  agreement  as  to  give  the  consignee  pos- 
session of  the  goods,  for  a  temporary  purpose,  as  to  ascertain 
their  condition,  or,  possibly,  that  he  might  offer  them  in  the 
market,  and  by  an  agreement  to  sell  raise  the  means  of  paying 
the  freight  ;  and  yet  would  preserve  for  the  master  his  security 
upon  the  goods  for  a  reasonable  time,  unless,  in  the  meantime, 
they  should  actually  become,  by  sale,  the  property  of  a  hoiidjiac 
purchaser. 

The  contract  of  affreightment  is  entire  ;  therefore  no  freight 
is  earned  unless  the  whole  is  earned,  by  carrying  the  goods 
quite  to  the  port  of  destination.  If  by  wreck,  or  other  cause, 
the  transportation  is  incomplete,  no  absolute  right  of  freight 
goes  out  of  it.  We  say  no  absolute  right,  because  a  condi- 
tional right  of  freight  does  exist.  To  understand  this  we  must 
remember,  that,  as  soon  as  the  ship  receives  the  goods,  it, 
on  the  one  hand,  comes  under  the  obligation  of  carrying  them 
to  their  destination,  and  on  the  other,  at  the  same  time  or  on 
breaking  ground  and  beginning  the  voyage,  acquires  the  right 
of  so  carrying  them.     Therefore,  if  a  wreck  or  other  interruption 


EMPLOYMENT  OF  A  SHIP  BY  THE  OWNER.  331 

intervenes,  the  ship-owner  has  the  right  of  trans-shipping  them, 
and  sending  them  forward  in  the  original  ship  or  another  ship, 
to  the  place  of  their  original  destination.  When  they  arrive 
there,  he  may  claim  the  whole  freight  originally  agreed  on  ;  but 
if  forwarded  in  the  original  ship,  he  can  claim  no  more ;  for 
then  the  extra  cost  of  forwarding  the  goods  is  his  loss.  If  the 
master  or  owner  of  the  ship  forwards  them  in  another  ship  from 
necessity,  and  at  an  increased  cost,  the  shipper  must  pay  this 
increased  cost. 

The  ship-owner  not  only  may,  but  must,  send  forward  the 
goods,  at  his  own  cost,  if  this  can  be  done  by  means  reasonably 
within  his  reach.  He  is  not,  however,  answerable  for  any  delay 
thus  occurring,  or  for  any  damage  from  this  delay.  The  shipper 
himself,  by  his  agent,  may  always  reclaim  all  his  goods,  at  any 
intermediate  port  or  place,  on  tendering  all  his  freight  ;  because 
the  master's  right  of  sending  them  forward  is  merely  to  earn 
his  full  freight.  If,  therefore,  the  goods  are  damaged  and  need 
care,  and  the  master  can  send  them  forward  at  some  time  within 
reasonable  limits,  and  insists  upon  his  right  to  do  so,  the  ship- 
per can  obtain  possession  of  his  goods  only  by  paying  full  freight. 
If,  however,  the  master  tenders  the  goods  there  to  the  shipper, 
and  the  shipper  there  receives  them,  this  is  held  to  sever  or 
divide  the  contract  by  agreement,  and  now  what  is  called  a 
freight /ri?  rata  itineris,  or  for  that  part  of  the  voyage  which  is 
performed,  is  due.     This  is  quite  a  common  transaction. 

Difficult  questions  sometimes  arise  as  to  what  is  a  reception 
of  the  goods  by  their  owner.  The  rights  of  the  master  and  of 
the  shipper  are  apparently  opposed  to  each  other,  and  neither 
must  be  pressed  too  far.  The  master  must  not  pretend  to  hold 
the  goods  for  forwarding,  to  the  detriment  of  the  goods  or  their 
value,  when  he  cannot  forward  them,  but  merely  uses  this  pre- 
tence Xo-  compel  a  payment  of  full  freight.  And  the  shipper 
must  not  refuse  to  receive  the  goods,  when  the  master  can  do 
no  more  with  them,  and  offers  their  delivery,  in  good  faith. 

If  freight  for  a  part  of  the  voyage  is  payable,  the  question 
arises  by  what  rule  of  proportion  shall  it  be  measured.  One  is 
purely  geographical,  and  was  formerly  much  used  ;  that  is,  the 
whole  freight  would  pay  for  so  many  miles,  and  the  freight  for 


332 


THE  LA  W  OF  SHIPPIXG. 


a  part  must  pay  for  so  many  less.  Another  is  purely  commer- 
cial. The  whole  freight  being  a  certain  sum  for  the  whole  dis- 
tance, what  will  it  cost  to  bring  the  goods  to  the  place  where 
they  are  received,  and  how  much  to  take  them  thence  to  their 
original  destination.  Let  the  original  freight  be  divided  into 
two  parts  proportional  to  these,  and  the  first  part  is  the  freight 
for  the  part  of  the  voyage  through  which  they  were  carried,  or, 
as  it  is  called,  the  freight /r^  rata,  and  is  to  be  paid  by  the  ship- 
l)er  who  receives  the  goods.  Neither  of  these,  nor  indeed  any 
other  fixed  and  precise  rule,  is  generally  adopted  in  this  country. 
But  both  courts  and  merchants  seek,  by  combining  the  two,  to 
ascertain  what  proportion  of  the  increase  of  value  expected  from 
the  intended  transportation  has  been  actually  conferred  upon  the 
goods  by  actual  partial  transportation,  and  this  is  to  be  taken  as 
the  freight  that  is  due  pro  rata  itineris. 

If  the  bill  of  lading  requires  delivery  to  the  consignee  or 
his  assigns,"  he  or  they  paying  freight," — which  is  usual, — and 
the  master  delivers  the  goods  without  receiving  freight,  which 
the  consignee  fails  to  pay,  the  master  or  owner  cannot  in  the 
absence  of  express  contract  fall  back  on  the  consignor  and  make 
him  liable,  unless  he  can  show  that  the  consignor  actually  owned 
the  goods,  or  by  his  w^ords  or  acts  made  himself  responsible 
therefor,  in  which  case  the  bill  of  lading,  in  this  respect,  is 
nothing  more  than  an  order  by  a  principal  upon  an  agent  to  pay 
money  due  from  the  principal. 

Under  the  usual  bill  of  lading  the  goods  are  to  be  delivered 
to  the  consignee  or  his  assigns  on  the  payment  of  freight.  If 
goods  are  accepted  under  this  bill  of  lading,  the  party  receiving 
them,  whether  the  consignee  or  his  assignee,  becomes  liable  for 
the  freight.  If  the  master  delivers  goods  to  any  one,  saying  that 
he  shall  look  to  him  for  the  freight,  he  may  demand  the  freight 
of  him  unless  that  person  had  the  absolute  right  to  the  goods 
without  payment  of  freight ;  which  must  be  very  seldom  the 
case.  If  the  consignee  is  not  liable  for  the  freight,  his  indorse- 
ment of  the  bill  of  lading  does  not  make  him  so.  And  if  the 
consignee  is  liable,  and  the  goods  are  received  by  any  one  only 
as  agent  of  the  consignor,  this  agent  does  not  thereby  become 
liable. 


EMPLOYMENT  OE  A   SHIP  BY  THE  OWNER.         y^^^ 

If  freight  be  paid  in  advance,  and  not  subsequently  earned, 
it  must  be  repaid,  unless  it  can  be  shown  that  the  owner  took 
a  less  sum  for  ready  cash  than  he  would  otherwise  have  had, 
and  for  this  or  some  other  equivalent  reason  the  money  paid 
was  as  a  final  settlement,  and  was  to  be  retained  by  the  owner 
at  all  events. 

If  a  consignee  pay  more  than  he  should,  he  may  recover  it 
back,  if  paid  through  ignorance  or  mistake  of  fact ;  but  not  if, 
with  full  knowledge  of  all  the  facts,  he  was  ignorant  or  mistaken 
as  to  the  law. 

If  one  sells  his  ship  after  a  voyage  is  commenced,  he 
alone  can  claim  the  freight  of  the  shipper  of  goods,  although 
by  the  contract  of  sale  the  seller  is  to  pay  it  over  to  the  pur- 
chaser. A  mortgagee  of  a  ship  who  has  not  taken  posses- 
sion, has  not,  in  general,  any  right  to  the  freight,  unless  this 
is  specially  agreed.  Neither  has  a  lender  on  a  bottomrj' 
bond. 

No  freight,  of  course,  can  be  earned  by  an  illegal  voyage,  as 
the  law  will  not  enforce  any  illegal  contract,  or  sanction  any 
illegal  conduct. 

The  goods  are  to  be  delivered,  by  the  bill  of  lading,  in  good 
condition,  "excepting  the  dangers  of  the  seas,"  and  such  other 
risks  or  perils  as  may  be  expressed.  If  the  goods  are  dam- 
aged to  any  extent  by  any  of  these  perils,  and  yet  can  be  and 
are  delivered  in  specie  (that  is,  if  the  goods  are  actually  deli'- 
ered  although  hurt  or  spoilt,  as  corn  or  hides  although  rotten, 
flour  although  wet,  fish  although  spoilt),  the  freight  is  payable, 

The  shipper  or  consignee  cannot  abandon  the  goods  for 
the  freight,  if  they  remain  in  specie,  although  they  may  be 
worthless  ;  for  damage  caused  by  an  excepted  risk  is  his  loss, 
and  not  the  loss  of  the  owner.  If  they  are  lost  by  a  risk 
which  the  ship-owner  does  not  except  in  the  bill  of  lading,  he  is 
answerable  for  that  loss,  and  it  may  be  charged  in  settlement 
of  freight. 

If  they  are  lost  in  substance,  though  not  in  form,  that  is, 
although  the  cases  or  vessels  are  preserved,  as  if  sugar  is 
washed  out  of  boxes  or  hogsheads,  or  wine  leaks  out  of  casks, 
by  reason  of  injury  sustained  from  a  peril  of  the  sea,  though 


334  THE  LA  W  OF  SHIP  PING. 

the  master  may  deliver  the  hogsheads  or  boxes  or  casks,  this 
is  not  a  delivery  of  the  sugar  or  of  the  wine,  and  no  freight 
is  due. 

If  the  goods  are  injured,  or  actually  perish  and  disappear 
from  internal  defect  or  decay  or  change,  that  is,  from  causes  inher- 
ent in  the  goods  themselves,  with  no  fault  of  the  master,  freight 
is  due.  But  if  it  can  be  shown  that  the  loss  or  injury  might 
have  been  avoided  by  the  use  of'proper  precautionary  measures, 
and  that  the  usual  and  customary  methods  for  this  purpose  have 
been  neglected,  the  master  or  ship-owners  may  be  held  liable  for 
the  damage. 

If  they  are  lost  from  the  fault  of  the  ship-owner,  the  master, 
or  crew,  the  ship-owner  must  make  the  loss  good  ;  but  in  this 
case  may  have,  by  way  of  offset  or  deduction,  his  freight, 
because  the  shipper  is  entitled  to  full  indemnification,  but  not 
to  make  a  profit  out  of  this  loss.  If  goods  are  delivered 
iilthough  damaged  and  deteriorated  from  faults  for  which  the 
t)wner  is  responsible,  as  bad  stowage,  deviation,  negligent  navi- 
gation, or  the  like,  freight  is  due ;  the  amount  of  the  damage 
being  first  deducted. 

The  rules  in  respect  to  passage-money  are  quite  analogous 
to  those  which  regulate  the  payment  of  freight.  Usually,  how- 
ever, the  passage-money  is  paid  in  advance.  But  it  is  not  earned 
except  by  carrying  the  passenger,  or  pro  rata,  by  carrying  him 
only  a  part  of  the  way  with  his  consent.  And  if  paid  in  advance, 
and  not  earned  by  the  fault  of  the  ship  or  owner,  it  can  be  recov- 
ered back. 

SECTION  VII. 

CHARTER-PARTIES. 

The  owner  may  let  his  ship  to  others,  and  the  written 
instrument  by  which  this  is  done  is  called  by  an  ancient  name, 
a  Charter-Party.  The  form  of  this  instrument  varies  consider- 
ably, because  it  must  express  the  bargain  between  the  parties, 
and  this  of  course  varies  with  circumstances  and  the  pleasure 
of  the  parties.  An  agreement  to  make  and  receive  a  charter, 
though  not  itself  equivalent  to  a  charter,  will,  if  the  pur- 
poses   of   the    proposed    charter    are    carried    into    effect,    be 


CHARTER-PARTIES.  335 

considered  as  evidence  that  such  a  charter  was  made  and  con> 
pleted. 

Generally,  only  the  burden  of  the  ship  is  let,  the  owner 
holding  possession  of  her,  finding  and  paying  her  master  and 
crew  and  supplies  and  repairs,  and  navigating  her  as  is  agreed 
upon.  Sometimes,  however,  the  owner  lets  his  ship  as  he  might 
let  a  house,  and  the  hirer  takes  possession,  mans,  navigates, 
supplies,  and  even  repairs  her. 

In  the  latter  case,  bills  of  lading  are  not  commonly  given  by 
the  ship-owner  to  the  hirer ;  but  if  the  hirer  takes  the  goods  of 
other  shippers,  bills  of  lading  are  given  Ly  him  to  them  ;  but  in 
the  former,  which  we  have  said  is  much  more  common,  bills  of 
lading  are  usually  given  by  the  ship-owner  to  the  charterer  (or 
hirer),  as  they  are  in  the  case  of  a  general  ship.  They  are 
then,  however,  little  more  than  evidence  of  the  delivery  and 
receipt  of  the  goods,  for  the  charter-party  is  the  controlling 
contract  as  to  all  the  terms  or  provisions  which  it  expresses. 
The  master  is  not  authorized  to  sign  bills  promising  to  carry 
and  deliver  the  goods  for  less  freight  than  has  been  stipulated 
for.  And  if  he  signs  such  bills,  and  goods  are  shipped  by  the 
charterer,  neither  the  charterer  nor  any  person  shipping  the 
goods  with  a  knowledge  of  the  charter-party,  could  defend  on 
account  of  the  bills  of  lading,  against  the  owner's  claims  under 
the  charter-party. 

There  is  no  particular  form  required  for  a  charter-party.  It 
should,  however,  designate  particularly  the  ship,  the  voyage,  the 
master,  and  the  parties  ;  should  describe  the  ship  generally,  and 
particularly  as  to  her  tonnage  or  capacity;  should  designate 
especially  what  parts  of  the  ship  are  let,  and  what  parts,  if  any, 
are  reserved  to  the  owner,  or  to  the  master,  to  carry  goods,  or 
for  the  purpose  of  navigation ;  should  describe  the  voyage,  or 
the  period  of  time  for  which  the  ship  is  hired,  with  proper  par- 
ticularity ;  should  set  forth  the  lay-days,  the  demurrage,  the 
obligation  upon  either  party,  to  man,  navigate,  supply,  and  repair 
the  ship,  and  all  other  particulars  of  the  bargain,  for  this  is  a 
written  instrument  of  an  important  character,  and  cannot  be 
varied  by  any  external  evidence.  Finally,  it  should  state,  dis- 
tinctly and  precisely,  how  much  is  to  be  paid  for  the  ship, — 


336 


THE  LA  W  OF  SHIPPING. 


whether  by  ton,  and  if  so,  whether  by  ton  of  measurement  or 
ton  of  capacity  of  carriage,  or  in  one  gross  sum  for  the  whole 
burden, — and  when  the  money  is  payable,  and  how  ;  that  is,  in 
what  currency  or  at  what  exchange,  especially  if  it  be  payable 
abroad.  The  charter-party  U'-^ually  binds  the  ship  and  freight 
to  the  performance  of  the  duties  of  the  owner,  and  the  cargo 
to  the  duties  of  the  shipper.  l^ut  the  law-merchant  would 
create  this  mutuality  of  obligation  if  it  were  not  expressed. 

If  the  hirer  takes  the  whole  vessel,  he  may  put  the  goods  of 
other  shippers  on  board  (unless  prevented  by  express  stipula- 
tion) ;  but  whether  he  fills  the  whole  ship  or  not,  he  pays  for  the 
whole;  and  what  he  pays  for  so  much  of  the  ship  as  is  empty  is 
said  to  be  paid  for  dead  freight ;  and  if  the  master  brought  back 
the  cargo  because  it  could  not  be  disposed  of,  the  owner  of  the 
cargo  would  pay  freight  for  bringing  it  back,  although  the  char- 
ter-party said  nothing  about  a  return  cargo.  The  freight  is 
calculated  on  the  actual  capacity  of  the  ship,  unless  she  is  agreed 
to  be  of  a  specified  tonnage.  If  either  party  is  deceived  or 
defrauded  by  any  statement  in  the  charter-party,  he  has,  of 
course,  his  remedy  against  the  other  party. 

If  a  charterer  takes  the  goods  of  other  shippers,  payment 
by  one  of  them  to  the  master  or  ship-owner  is  a  good  defence 
against  the  claim  of  the  charterer  against  him,  for  so  much  as 
the  charterer  was  bound  to  pay  the  owner,  but  no  more. 

The  voyage  may  be  a  double  one ;  a  voyage  out,  and  then  i 
voyage  home  ;  or  a  voyage  to  one  port,  and  thence  to  anothei , 
The  question  sometimes  arises,  v/hether  any  freight  is  payabl*; 
if  the  ship  arrives  in  safety  out,  and  delivers  her  cargo  there, 
and  is  lost  on  her  return  with  the  cargo  that  represents  the 
cargo  out.  Of  course,  the  parties  may  make  what  bargain  they 
please,  and  the  law  respects  it ;  but  in  the  absence  of  an  agree- 
ment on  this  point,  the  courts  would  generally  consider  each 
voyage,  at  the  termination  of  which  goods  are  delivered,  as  a 
voyage  by  itself,  earning  its  own  freight. 

As  time  has  become  of  the  utmost  importance  in  com- 
mercial transactions,  both  parties  to  this  contract  should  be 
punctual,  and  cause  no  unnecessary  delay ;  and  for  such  delay 
the  party  injured  would  have  his  remedy  against  the  party  in 


CHARTER-PARTIES.  33-T 

fauU.  The  charter-party  usually  provides  for  so  many  "lay- 
days," and  for  so  much  "demurrage."  Lay-days,  or  working- 
days,  are  so  many  days  which  the  charterer  is  allowed,  without 
paying  for  them,  or  paying  only  a  small  price,  for  loading  or 
for  unloading  the  vessel.  These  lay-days  are  counted  from  the 
arrival  of  the  ship  at  her  dock,  wharf,  or  other  place  of  discharge, 
and  not  from  her  arrival  at  her  port  of  destination,  unless  other- 
wise agreed  on  by  the  parties ;  and  the  usage  of  the  port  is 
often  adverted  to,  to  determine  the  place  and  manner  of  loading. 
In  the  absence  of  any  custom  or  bargain  to  the  contrary,  Sun- 
days are  computed  in  the  calculation  of  lay-days  at  the  port  of 
discharge;  but  if  the  contract  specifies  "working  lay-days," 
Sundays  and  holidays  are  excluded.  If  more  time  than  the 
agreed  lay-days  is  occupied,  it  must  be  paid  for;  and  "demur- 
rage "  means  what  is  thus  paid.  Usually,  the  charterer  agrees 
to  pay  so  much  demurrage  a  day.  If  he  agrees  only  to  pay 
demurrage,  without  specifying  the  sum,  or  if  so  many  working- 
days  are  agreed  on,  and  nothing  more  is  said,  it  would,  generally, 
be  considered  that  the  number  of  lay-days  determined  what  wa.s 
a  reasonable  and  proper  delay,  and  that  for  whatsoever  was 
more  than  this  the  party  in  fault  must  pay  a  reasonable  in- 
demnity. 

If  time  be  occupied  in  the  repairs  of  the  ship,  which  become 
necessary  without  the  fault  of  the  ship-owner  or  master,  or  of 
the  ship  itself,  that  is,  if  they  do  not  arise  from  her  original 
unseaworthiness,  the  charterer  pays  during  this  time.  The 
charterer  or  hirer  must  not  abandon  the  vessel  while  he  can 
keep  her  afloat,  and  suitably  provided  for  the  employment  and 
destination  for  which  she  was  hired  ;  and  the  ship-owner  must 
be  ready  to  pay  all  expenses  and  damages  necessarily  incurred 
for  the  purpose.  But  the  charterer  will  not  be  bound  by  inc 
charter-party  to  wait  for  the  repair,  unless  the  vessel  can  be 
repaired  within  a  reasonable  time. 

Many  cases  have  arisen  where  the  ship  was  delayed  by  differ- 
ent causes,  and  the  question  occurred,  which  party  should  pav 
for  the  time  thus  lost.  I  should  say  that  no  delay  arising  from 
the  elements,  as  from  ice,  or  tide,  or  tempest,  or  from  any  act 
of  government,  or  from  any  real  disability  of  the  consignee 
22 


338  THE  LAW  OF  SHIPPING. 

which  could  not  be  imputed  to  his  own  act,  or  to  his  own 
wrongful  neglect,  would  give  rise  to  a  claim  on  the  charterer 
for  demurrage. 

Demurrage  seems  essentially  due  only  for  the  fault  or  volun- 
tary act  of  the  charterer;  but  if  he  hires  at  so  much  on  time, 
that  is,  by  the  day,  week,  or  month,  then,  if  the  vessel  be 
delayed  by  seizure,  embargo,  or  capture,  and  the  impediment  is 
removed,  and  the  ship  completes  her  voyage,  the  charterer  pays 
for  the  whole  time.  If  she  be  condemned,  or  otherwise  lost, 
this  terminates  the  voyage  and  the  contract. 

The  contract  m.ay  be  dissolved  by  the  parties,  by  mutual 
consent,  or  against  their  consent  by  any  circumstance  which 
makes  the  fulfillment  of  the  contract  illegal ;  as,  for  example,  by 
a  declaration  of  war,  on  the  part  of  the  country  to  which  the 
ship  belongs,  against  that  to  which  she  was  to  go.  So,  either 
•■\xv  embargo,  or  an  act  of  non-intercourse,  or  a  blockade  of  the 
port  to  which  the  ship  was  going,  may  either  annul  or  suspend 
the  contract  of  charter-party.  And  we  should  say  they  would 
be  held  to  suspend  only,  if  they  were  temporary  in  their  terms, 
and  did  not  require  a  delay  which  would  be  destructive  of  the 
purposes  of  the  voyage. 

In  reference  to  all  these  points,  it  is  to  be  understood,  that 
if  the  parties  know  or  expect  the  circumstance  when  they  make 
their  bargain,  and  provide  for  it,  any  bargain  they  choose  to 
make  in  relation  to  it  would  be  enforced,  unless  it  required  one 
or  other  of  the  parties  to  do  something  prohibited  by  the  law  of 
nations,  or  the  law  of  the  country  in  which  the  parties  resided, 
and  to  whose  tribunals  they  must  resort. 

^  SECTION  VIII. 

GENERAL   AVERAGE. 

Whichever  of  the  three  great  mercantile  interests — ship, 
freight,  or  cargo — is  voluntarily  lost  or  damaged  for  the  benefit 
of  the  others,  if  the  others  receive  benefit  therefrom,  they  must 
contribute  ratably  to  the  loss.  That  is  to  say,  such  a  loss  is 
averaged  upon  all  the  interests  and  property  which  derive 
advantage  from  it.      The  phrase   "general  average"   is  used, 


GENERAL  AVERAGE.  339 

because  a  loss  of  a  part  is  thus  divided  among  all  the  other 
parts,  and  is  sustained  by  all  in  equal  proportion.  This  rule  is 
ancient  and  universal.  It  would  be  held  to  apply  to  all  our 
inland  navigation,  whether  of  river  or  lake,  steam  or  canvas. 

There  are  three  essentials  in  general  average  without  the 
concurrence  of  all  of  which  there  can  be  no  claim  for  a  loss. 
First,  the  sacrifice  must  be  voluntary ;  second,  it  must  be  neces- 
sary ;  third,  it  must  be  successful.  Or,  in  other  words,  there 
must  be  a  common  danger,  a  voluntary  loss,  and  a  saving  of  the 
imperilled  property  by  that  loss. 

The  loss  must  not  only  be  voluntary,  but,  what  is  indeed 
implied  in  its  being  voluntary,  it  must  be  for  the  purpose  and 
with  the  intention  of  saving  something  else.  And  this  inten- 
tion must  be  carried  into  effect ;  for  only  the  interest  or  property 
which  is  actually  saved  can  be  called  on  to  contribute  for  that 
which  was  lost. 

The  reason  of  what  has  been  said  must  be  distinctly  under- 
stood, because  the  whole  law  of  general  average  rests  upon  it. 
It  is  simply  this :  if  any  man's  property  be  destroyed  for  the 
benefit  of  his  neighbors,  they  who  are  helped  by  his  loss  ought 
to  make  up  his  loss.  The  law  supposes  that  all  who  are 
interested  in  the  ship  or  the  cargo,  or  any  part  of  either,  agree 
together  beforehand,  that,  if  a  sacrifice  of  a  part  can  save  the 
rest,  that  sacrifice  shall  be  made,  without  stopping  to  ask  who 
it  is  that  suffers  in  the  first  place;  and  that  afterwards,  if  the 
sacrifice  be  beneficial  to  any  for  whom  it  was  made,  such  persons 
shall  bear  their  share  of  it,  by  contributions  to  him  whose 
property  was  purposely  destroyed  for  their  good.  And  theii 
contributions  shall  be  in  proportion  to  the  value  of  the  property 
saved  for  them  by  the  sacrifice. 

Any  loss  which  comes  within  this  reason  is  an  average  loss ; 
as  ransom  paid  to  a  captor  or  pirate ;  not  so,  however,  if  he 
take  what  he  will,  and  leave  the  ship  and  the  rest ;  for  this  ther3 
is  no  contribution.  So,  cutting  away  bulwarks  or  the  deck,  to 
get  at  goods  for  jettison,  is  an  average  loss.  As  is  also  the 
cutting  away  of  the  masts  and  rigging,  or  throwing  overboard  a 
boat  to  relieve  the  ship,  or  the  loss  of  a  cable  and  anchor,  or 
either,  by  cutting  the  cable  to  avoid  an  impending  peril.     So  is 


340 


THE  LA  W  OF  SHIPPING. 


a  damage  which,  though  not  intended,  is  the  direct  effect  and 
consequence  of  an  act  which  was  intended;  as,  where  a  mast  is 
purposely  cut  away,  and  by  reason  of  it  water  gets  into  the 
hold,  and  damages  a  cargo  of  corn,  this  damage  is  as  much  a 
general  average  as  the  loss  of  the  mast. 

But  if  a  ship  makes  all  sail  in  a  violent  gale  to  escape  a  lee 
shore,  and  so  saves  ship  and  cargo,  but  carries  away  her  spars, 
etc. ;  or  if  an  armed  ship  fights  a  pirate  or  enemy,  or  beats  him 
off  at  great  loss ;  the  first  is  a  common  sea  risk,  the  second  a 
common  war  risk,  and  neither  of  them  is  a  ground  for  average 
contribution. 

It  is  not  considered  prudent  to  lade  goods  on  deck,  because 
they  are  not  only  more  liable  to  loss  there,  but  hamper  the 
vessel,  and  perhaps  make  her  top-heavy,  and  increase  the  com- 
mon danger  for  the  whole  ship  and  cargo.  Therefore,  by  tht 
general  rule,  if  goods  on  deck  are  jettisoned  (which  old  mercan- 
tile  word  means  cast  overboard),  they  are  not  to  be  contributed 
for.  But  there  are  some  voyages  on  which  there  is  a  knowji 
and  established  usage  to  carry  goods  of  a  certain  kind  on  deck. 
This  justifies  the  carrying  them  there,  and  then  the  jettison  of 
them  would  entitle  the  owner  to  contribution. 

The  repairs  of  a  ship  are  for  the  benefit  of  the  ship  itself. 
But  if  a  ship  be  in  a  damaged  condition,  at  a  port  where  she 
cannot  be  permanently  repaired,  and  recei^^e  there  a  temporary 
repair,  which  enables  her  to  proceed  to  another  port  where  sh,^ 
may  have  a  thorough  repair,  and  thereby  the  voyage  is  savec', 
the  cost  of  all  of  the  first  repair  which  was  of  no  further  us'S 
than  to  make  the  perinanent  repair  possible,  is  to  be  contributed 
for  by  ship,  freight,  and  cargo,  because  all  these  v/ere  saved 
by  it. 

If  a  ship  put  into  a  port  for  necessary  repair,  and  receive  it, 
and  the  voyage  is  by  reason  thereof  successfully  prosecuted,  the 
wages  and  provisions  of  the  crew,  from  the  time  of  putting  away 
for  the  port,  the  expense  of  loading  and  unloading,  and  every 
other  necessary  expense  arising  from  this  need  of  repair,  are  an 
average. 

As  to  the  expenses,  wages,  etc.,  during  a  capture,  or  a  deten- 
tion by  embargo,  the  claim  for  contribution  is  limited  to  those 


GENERAL  AVERAGE. 


341 


expenses  which  are  necessarily  and  successfully  incurred  in 
saving  or  liberating  the  property. 

The  loss  or  sacrifice  must  be  necessary  or  justified  by  a 
reasonable  probability  of  its  necessity  and  utility.  In  former 
times  the  law  guarded  with  much  care  against  wanton  and 
unnecessary  loss  by  requiring  that  the  master  should  formally 
consult  his  officers  and  crew,  and  obtain  their  consent  before 
making  a  jettison.  But  this  rule  has  passed  away,  and  the 
practice  is  almost  unknown  ;  and  it  has  been  held  that  where  a 
consultation  is  had  this  merely  proves  that  the  jettison  was  delib- 
erately made,  but  does  not  prove  the  necessity  of  it. 

An  "Adjustment  of  Average"  means  an  account  stated, 
which  exhibits  accurately  all  the  losses  to  be  contributed  for, 
and  all  the  property  or  interests  bound  to  contribute,  and  all 
tlie  persons  entitled  to  receive  contribution,  and  the  amounts 
they  should  each  receive,  and  all  persons  bound  to  pay  contribu- 
tion, and  the  amounts  they  should  each  pay. 

It  is  the  master's  duty  to  have  an  average  adjustment  made 
at  the  first  port  of  delivery  at  which  he  arrives.  And  an  adjust- 
ment made  there,  especially  if  this  be  a  foreign  port,  is  generally 
held  to  be  conclusive  upon  all  parties.  For  the  purpose  of  this 
rule,  our  States  are  foreign  to  each  other ;  as  they  are  indeed 
for  most  purposes  under  the  Law  of  Admiralty,  or  the  Law  of 
Shipping.  And  we  should  state  the  rule  to  be  that  an  adjust- 
vnent,  when  properly  made,  according  to  the  law  of  the  port 
where  it  is  made,  is  binding  everywhere.  But  a  foreign  adjust- 
ment might  doubtless  be  set  aside  or  corrected,  for  fraud  or 
gross  error. 

The  master  has  the  right  of  refusing  delivery  of  the  goods, 
until  the  contribution  due  from  them  on  general  average  is  paid 
to  him.  That  is,  he  cannot  hold  the  whole  cargo,  if  it  belong 
to  different  consignees,  until  the  whole  average  is  paid ;  but  he 
may  hold  all  that  belongs  to  each  consignee,  until  all  that  is  due 
from  that  consignee  is  paid.  And  the  master  may  retain  public 
property  belonging  to  the  United  States  until  the  average  con- 
tribution due  upon  it  has  been  paid. 

As  the  purpose  of  average  and  contribution  is  to  divide 
the  loss  proportionably  over  all  the  property  saved  by  it,  the 


342 


THE  LA  W  OF  SHIPPING. 


whole  amount  which  any  one  loses  is  not  made  up  to  him,  but 
only  so  much  as  will  make  his  loss  the  same  percentage  as  every 
other  party  suffers.  Thus,  if  there  be  four  shippers,  and  each 
has  on  board  $5,000,  and  the  ship  is  worth  $15,000,  and  the 
freight  $5,000,  and  all  the  goods  of  one  shipper  are  thrown  over, 
and  everything  else  saved ;  now  the  whole  contributing  interest 
is  $40,000,  and  the  loss,  which  is  $5,000,  is  one-eighth  of  this 
contributory  interest.  The  shipper  whose  goods  are  jettisoned 
therefore  loses  one-eighth  of  his  goods,  and  the  remaining  seven- 
eighths  are  made  up  to  him,  by  each  owner  of  property  saved 
giving  up  one-eighth. 

There  are  usually  in  every  commercial  place  persons  whose 
business  it  is  to  make  up  Adjustments.  As  the  losses  usually 
consist  of  many  items,  some  of  which  arc  general  average,  and 
some  rest  on  the  different  interests  on  which  they  fell,  and  as 
the  contributory  interests  must  all  be  enumerated,  and  the  value 
of  each  ascertained  according  to  the  general  principles  of  law, 
and  then  the  average  struck  on  all  these  items,  it  is  obvious  that 
this  must  be  a  calculation  requiring  great  care  and  skill ;  and  as 
the  adjustment  affects  materially  persons  who  may  not  be  pres- 
ent, nor  specially  represented, — for  all  these  reasons  only  those 
who  are  known  to  be  competent  to  the  work  should  be  employed 
to  make  this  adjustment.  With  us  this  work  is  generally  don(i 
by  insurance  brokers. 

SECTION  IX. 


In  the  Law  of  Shipping  and  the  usage  of  merchants,  the 
word  "  salvage  "  has  two  quite  different  meanings.  If  a  ship  or 
cargo  meets  with  disaster,  and  the  larger  part  is  destroyed  or 
lost,  and  a  part  be  saved,  that  which  is  saved  is  called  the 
"  salvage."  Thus,  if  a  ship  be  wrecked,  and  sold  where  she  lies 
because  she  cannot  be  got  off,  her  materials,  wood  and  metal, 
her  spars,  sails,  cordage,  boats,  and  everything  else  about  her 
which  has  any  value,  constitute  the  "salvage."  And  all  of  this, 
or  the  proceeds  of  it  if  it  be  sold  by  the  master,  belong  to  the 
owner  or  to  the  insurer,  accordingly  as  circumstances  may  indi- 
cate ;  and  this  question  will  be  considered  in  the  chapter  on  the 
Law  of  Insurance. 


SALVAGE. 


343 


Besides  this,  which  is  the  primary  meaning  of  the  word, 
salvage  has  quite  another  signification.  By  an  ancient  and  uni- 
versal laWf  maritime  property  which  has  sustained  maritime 
disaster,  and  is  in  danger  of  perishing,  may  be  saved  by  any 
person  who  can  save  it,  whether  they  are  or  are  not  requested 
to  do  so  by  the  owner  or  his  agent.  And  the  persons  so  saving 
it  acquire  a  right  to  compensation,  and  a  lien  or  claim  on  the 
property  saved  for  compensation.  The  persons  saving  the 
property  are  called  "salvors  ;"  the  amount  paid  to  them  is  paid 
for  saving  the  property,  or,  as  it  was  called,  for  the  "salvage," 
meaning  at  first  by  this  word  the  act  of  saving  it;  but  the  habit 
of  paying  so  much  for  "salvage"  led  to  understanding  by  "sal- 
vage "  the  money  paid.  Then  it  was  said,  the  money  was  paid 
as  salvage.  This  is  now  the  more  common  use  of  the  word. 
Thus  a  party  bringing  a  saved  vessel  in  demands  "  salvage," 
and  estimates  the  salvage  as  so  much ;  and  the  owners  are  said 
to  lose  so  much  by  salvage,  or  so  much  money  is  charged  to 
salvage,  and  insurers  are  said  to  be  liable  for  salvage,  meaning 
in  all  these  and  similar  cases  the  amount  paid  for  saving,  or  for 
the  act  of  salvage. 

This  law  is  not  only  applicable  to  all  maritime  property,  bul 
is  confined  to  that ;  and  is  nearly  unknown  in  reference  to  prop 
erty  saved  from  destruction  on  land. 

Because  this  principle  is  wholly  and  exclusively  maritime,  no 
court  but  that  of  Admiralty  acknowledges  and  enforces  it.  T\v.. 
way  in  which  it  is  enforced  is  this.  Salvors  have  a  lien  on  the 
property  saved  for  their  compensation ;  that  is,  they  have  pos- 
session of  it,  and  have  a  right  to  keep  possession  of  it  until  their 
claim  be  satisfied.  For  this  purpose  they  bring  the  ship  or  goods 
into  the  nearest  port,  and  then  make  their  claim  of  the  owner  or 
his  agent,  if  they  can  find  him,  and  he  is  within  reach.  If  he 
cannot  be  found,  or  if  he  refuses  what  they  think  proper  to 
demand,  they  employ  counsel  who  are  acquainted  with  the  prac- 
tice in  Admiralty  courts,  who  present  to  the  court  in  the  district 
where  the  property  is  a  /idc/,  as  it  is  called  in  Admiralty  law, 
setting  forth  the  facts,  and  the  demand  for  salvage.  Thereupon 
the  court  takes  possession  of  the  property,  and  orders  notice  to 
the  owners,   if  possible.     The  owners   thereupon   appear,  and 


344 


THE  LA  W  OF  SHIPPING. 


either  resist  all  the  demand  for  salvage,  on  the  ground  that  no 
services  were  performed  which  entitled  the  party  to  salvage,  or, 
admitting  the  service,  they  go  to  trial  to  determine  whether  any 
salvage,  and,  if  so,  how  much,  shall  be  paid.  On  this  question, 
evidence  and  argument  are  heard,  and  the  court  then  issues  such 
decree  as  the  case  seems  to  require. 

Although  services  were  rendered  to  the  ship  or  cargo,  or 
both,  it  does  not  follow  that  they  were  salvage  services  in  the 
legal  sense  of  the  word.  For  certainly  every  person  who  helps 
another  at  sea  does  not  thereby  acquire  a  right  to  take  posses- 
sion of  the  property  in  reference  to  which  his  assistance  was 
given,  and  carry  it  into  port.  To  give  this  right,  the  property, 
whether  ship  or  cargo,  must  have  been  in  the  proper  and 
>ational  sense  of  the  term  saved ;  that  is,  there  must  have  been 
j'Ctual  disaster  and  impending  danger  of  destruction;  and  from 
this  danger  the  property  must  have  been  rescued  by  the  exer- 
tions of  the  salvors,  either  alone,  or  working  together  with  the 
original  crew. 

It  is  to  be  noticed,  however,  that  neither  the  master  nor 
officers  nor  sailors  of  the  ship  that  is  saved  can  be  salvors,  or 
entitled  to  salvage.  The  policy  of  the  law-merchant  forbids 
the  holding  out  such  a  reward  for  merely  doing  their  duty.  It 
considers  that  sailors  might  be  induced  to  let  the  ve'ssel  get 
into  danger,  if  they  could  expect  a  special  reward  for  getting 
her  out  of  it.  They  are  already  bound  by  law  to  do  all  they 
possibly  can  dp  to  save  the  ship  and  cargo  under  all  circum- 
stances. But  courts  of  admiralty  have  sometimes  allowed 
gratuities  to  seamen  for  extraordinary  exertions  and  very 
meritorious  conduct.  A  passenger  may  be  a  salvor  of  the  ship 
he  sails  in,  because  he  has  no  especial  duty  in  regard  to  it. 

If  the  Court  of  Admiralty  find  it  to  be  a  case  for  salvage, 
there  are  no  positive  and  certain  rules  which  determine  how 
much  shall  be  given,  or  in  what  proportions,  to  the  different 
salvors.  In  every  case  the  court  are  governed  by  the  circum- 
stances of  that  case  ;  and  even  if  a  ship  or  cargo  be  entirely 
abandoned  at  sea,  or,  in  maritime  phrase,  derelict,  those  who 
find  it  and  take  possession  of  it,  and  bring  it  in,  take  according 
to  their  merits,  and  not  one-half,  as  used  to  be  the  rule.     More 


SALVAGE. 


345 


than  one-half  is  very  seldom  given ;  but  this  has  been  done  in 
a  few  extraordinary  cases. 

If  the  property  is  not  entirely  derelict  or  deserted,  and  all 
hope  of  recoverinij  it  by  the  original  crew  given  up,  then  less 
than  half  is  usually  given  by  way  of  salvage.  How  much  less 
depends  on  the  circumstances.  It  may  be  very  little,  or  nearly 
half.  The  court  will  inquire  how  much  time  was  lost  by  the 
salvors,  how  much  labor  the  saving  of  the  property  required, 
and,  most  of  all,  how  much  exposure  the  salvors  underwent,  or 
how  much  danger  they  incurred.  For  it  is  an  established  rule, 
that  in  addition  to  a  fair  compensation  for  time,  labor,  and  loss 
of  insurance  (for  which  see  the  chapter  on  Insurance),  the 
court  will  give  a  further  sum  by  way  of  reward,  and  for  the 
purpose  of  encouraging  others  to  make  similar  exertions  and 
incur  similar  perils  to  save  valuable  property.  And,  in  this 
point  of  view,  all  necessary  exposure  and  danger  are  considered 
IS  entitled  to  liberal  reward. 

If  the  court  have  not  restored  the  property  to  its  owners 
on  their  giving  bonds  with  sureties  to  pay  the  salvage  and  costs, 
they  order  the  property  sold  ;  and  they  may  do  either  of  these 
things  at  any  period  of  the  proceedings.  At  the  close,  they 
decree  the  whole  amount  of  salvage,  and  also  direct  particularly 
its  distribution, 

A  large  part,  usually  about  one-fourth,  of  the  whole  salvage, 
is  allowed  to  the  owners  of  the  saving  ship  or  ships ;  another 
large  part  to  her  master,  less  parts  to  the  officers,  in  proportion 
to  their  rank,  and  the  residue  is  divided  among  the  crew,  with 
such  discrimination  between  one  and  another  as  greater  or  less 
exertions  or  merit  require. 

The  trial  is  had,  and  the  whole  decree  and  this  distribution 
of  the  salvage  made,  by  the  court  alone,  without  a  jury.  But 
the  statute  of  the  United  States,  which  gives  our  courts  c£ 
Admiralty  (which  are  exclusively  United  States  courts,  n.> 
State  court  having  any  Admiralty  power)  jurisdiction  in  Admi- 
ralty over  our  inland  lakes  and  rivers,  provides  that  disputed 
facts  shall  be  tried  by  a  jury,  in  most  cases,  at  the  request  of 
either  party. 


346  ^-^^  L^  ^^^  OF  SHIPPING. 

SECTION  X. 

THE   NAVIGATION    OF   THE   SHIP. 

I.  Of  the  Powers  and  Duties  of  the  Master. — The  mas- 
ter has  the  whole  care  and  the  supreme  command  of  his  vessel, 
and  his  duties  are  co-equal  with  his  authority.  He  must  see  to 
everything  that  respects  her  condition  ;  including  her  repair, 
supply,  loading,  navigation,  and  unloading.  He  is  principally 
the  agent  of  the  owner ;  but  is,  to  a  certain  extent,  the  agent 
of  the  sjiipper,  and  of  the  insurer,  and  of  all  who  are  interested 
in  the  property  under  his  charge. 

Much  of  his  authority  as  agent  of  the  owner  springs  from 
necessity.  He  may  even  sell  the  ship  in  a  case  of  extreme 
necessity  ;  so  he  may  make  a  bottomry  bond  which  shall  pledge 
her  for  a  debt  ;  so  he  may  charter  her  for  a  voyage  or  a  term 
of  time  ;  so  he  may  raise  money  for  repairs,  or  incur  a  debt 
therefor,  and  make  his  owners  liable.  All  these,  however,  he 
can  do  only  from  necessity.  If  the  owner  be  present,  in 
person  or  by  his  agent,  or  is  within  easy  access,  or  can  be  con- 
sulted, by  telegraph  or  otherwise,  without  a  loss  of  time  which 
would  be  seriously  injurious,  the  master  has  no  power  to  do 
any  of  these  things  unless  specially  authorized. 

If  he  does  them  in  the  home  port,  the  owner  is  liable  only 
where,  by  some  act  or  words,  he  ratifies  or  adopts  the  act  of  his 
master.  If  in  a  foreign  port,  even  if  the  owner  were  there,  he 
may  be  liable,  on  his  master's  contracts  of  this  kind,  to  those 
who  neither  knew  nor  had  the  means  of  knowing  that  the 
master's  power  was  superseded  or  qualified  by  the  presence  of 
the  owner.  The  master  being  by  the  law-merchant  the  general 
agent  of  the  owner  of  the  ship,  no  one  dealing  with  him  can  be 
prejudiced  by  any  private  or  secret  limitations  to  his  authority 
by  the  owner. 

Beyond  the  ordinary  extent  of  his  power,  which  is  limited 
to  the  care  and  navigation  of  the  ship,  he  can  go,  as  we  have 
said,  only  from  necessity.  But  this  necessity  must  be  greater 
to  justify  some  acts  than  for  others.  Thus,  he  can  sell  the  ship 
only  in  a  case  of  extreme  and  urgent  necessity  ;  that  is,  only 
when  it  seems  in  all  reason  impossible  to  save  her,  and  a  sale 


THE  XA  VIGA  TION  OF  THE  SHIP. 


347 


is  the  only  way  of  preserving  for  the  owners  or  insurers  any 
part  of  her  value.  We  say  "seems;"'  for  if  such  is  the 
appearance  at  the  time,  when  all  existing  circumstances  are 
carefully  considered  and  weighed,  the  sale  is  not  void,  if  some 
accident,  or  cause  which  could  not  be  anticipated,  as  a  sudden 
change  in  the  wind  or  sea,  enables  the  purchaser  to  save  her 
easily.     Several  such  cases  have  occurred. 

So,  to  justify  him  in  pledging  her  by  bottomry,  there  must 
be  a  stringent  and  sufficient  necessity ;  but  it  may  be  far  less 
than  is  required  to  authorize  a  sale.  It  is  enough  if  the  money 
is  really  needed  for  the  safety  of  the  ship,  and  cannot  otherwise 
be  raised,  or  not  without  great  waste. 

So,  to  charter  the  ship,  there  must  be  a  sufi^cient  necessity, 
unless  the  master  has  express  power  to  do  this.  But  the 
necessity  for  this  act  may  be  only  a  mercantile  necessity  ;  or. 
in  other  words,  a  certain  and  considerable  mercantile  expediency. 

So,  to  bind  the  owners  to  expense  for  repairs  or  supplies, 
there  must  also  be  a  necessity  for  them.  But  here  it  is  suffi- 
cient  if  the  repairs  or  supplies  are  such  as  the  condition  of  thi.^ 
vessel,  and  the  safe  and  comfortable  prosecution  of  the  voyage, 
render  proper. 

So  the  master — unlike  other  agents,  who  have  generally  no 
power  of  delegation — may  substitute  another  for  himself,  to 
discharge  all  his  duties,  and  possess  all  his  authority,  if  he  is 
unable  to  discharge  his  own  duties,  because,  in  tiiat  case,  the 
safety  of  the  ship  and  property  calls  for  this  substitution. 

Generally,  the  master  has  nothing  to  do  with  the  cargo 
between  the  lading  and  the  delivery.  But,  if  the  necessity 
arises,  he  may  sell  the  cargo,  or  a  part  of  it,  at  an  intermediate 
port,  if  he  cannot  carry  it  on  or  transmit  it,  and  it  must  perish 
before  he  can  receive  specific  orders.  So,  he  may  sell  it,  or  a 
part,  or  pledge  (or  hypothecate)  it,  by  means  of  a  respondentia 
bond,  in  order  to  raise  money  for  the  common  benefit.  A  bond 
of  respondentia  is  much  the  same  thing  as  to  the  cargo  that  a 
bottomry  bond  is  as  to  the  ship.  Money  is  borrowed  bv  it,  at 
maritime  interest,  on  maritime  risk,  the  debt  to  be  discharged 
by  a  loss  of  the  goods.  But  it  can  be  made  by  the  master  only 
on  even  a  stronger  necessity  than  that  required  for  bottomry ; 


348  THE  LA  W  OF  SHIPPING. 

only  when  he  can  raise  no  money  by  bills  on  the  owner,  nor  by 
a  bottomry  of  the  shiiD,  nor  by  any  other  use  of  the  property 
or  credit  of  the  owner.  Indeed,  it  seems  that,  when  goods  are 
sold  by  the  master  to  repair  the  vessel,  it  is  to  be  considered  as 
in  the  nature  of  a  forced  loan,  for  which  the  owner  of  the 
vessel  is  liable  to  the  shipper,  whether  the  vessel  arrive  or  not. 

The  general  remark  may  be  made,  that  a  master  has  no 
ordinary  power,  and  can  hardly  derive  any  extraordinary  power 
even  from  any  necessity,  except  for  those  things  which  are 
fairly  within  the  scope  of  his  business  as  master,  and  during 
his  employment  as  master.  Beyond  this  he  has  no  agency  or 
authority  that  is  not  expressly  given  him. 

The  owner  is  liable  also  for  the  wrong-doings  of  the  master; 
1  'ut  with  the  limitation  which  belongs  generally  to  the  liability 
of  a  principal  for  the  torts  of  his  agent,  or  of  a  master  for  the 
torts  of  his  servant.  That  is,  he  is  liable  for  any  injury  done 
by  the  master  while  acting  as  the  master  of  his  ship,  but  not  for 
the  wrongful  acts  which  he  may  do  personally  when  he  is  not 
acting  in  his  capacity  of  master,  although  he  holds  the  office  at 
the  time.  Thus  if,  through  want  of  skill  or  care  while  navi- 
^.;,'ating  the  ship,  he  runs  another  down,  the  owner  is  liable  for 
Ihe  collision.  But  the  owner  is  not  liable  if  the  master 
c;mbezzles  goods  which  he  takes  on  board  to  fill  his  own  privi- 
lege, to  have  himself  all  the  freight  and  profit. 

2.  Of  CoLLisiox. — The  general  rules  in  this  country  in 
respect  to  collision  are  that  the  party  in  fault  suffers  his  own 
loss  and  compensates  the  other  party  for  the  loss  he  may  sustain. 
If  neither  is  in  fault,  the  loss  rests  where  it  falls.  If  both  parties 
are  in  fault,  the  loss  rests,  where  it  falls,  by  the  rules  of 
the  common  law,  but  is  equally  divided  in  Admiralty.  There 
are  certain  rules  in  regard  to  sailing,  founded  on  the  princi- 
ple that  the  ship  which  can  change  its  course  to  avoid  collision 
with  least  inconvenience  must  do  so  ;  and  therefore  that  the 
ship  that  has  a  fair  or  leading  wind  shall  give  way  to  one  on  a 
wdnd,  or  go  under  her  stern  ;  and  if  vessels  are  approaching 
each  other,  both  having  the  wind  on  the  beam,  or  so  far  free 
that  either  may  change  its  course  in  either  direction,  the  vessel 
on  the  larboard  tack  must  give  way,  and  each  pass  to  the  right. 


THE  NA  VIGA  TIO.V  OF  THE  SHIP. 


349 


The  same  rule  governs  vessels  sailing  on  the  wind,  and  approach- 
ing each  other,  when  it  is  doubtful  which  is  to  the  windward, 
l^ut  if  the  vessel  on  the  larboard  tack  is  so  far  to  windward,  that, 
if  both  persist  on  their  course,  the  other  will  strike  her  on  the 
lee  side,  abaft  the  beam,  or  near  the  stern,  in  that  case  the  vessel 
on  the  starboard  tack  should  give  way,  as  she  can  do  so  with 
greater  facility,  and  less  loss  of  time  and  distance,  than  the 
other.  Again,  when  vessels  are  crossing  each  other  in  opposite 
directions,  and  there  is  the  least  doubt  of  their  going  clear,  the 
vessel  on  the  starboard  tack  should  persevere  on  her  course, 
while  that  on  the  larboard  tack  should  bear  up,  or  keep  away 
before  the  wind. 

It  is  also  held  that  steam-vessels  are  regarded  in  the  light  of 
vessels  navigating  vv'ith  a  fair  wind,  and  are  always  under  obliga^ 
tions  to  do  whatever  a  sailing-vessel  going  free  or  with  a  fair 
wind  would  be  required  to  do  under  similar  circumstances.  Their 
obligation  extends  still  further,  because  they  possess  a  pov.-er  to 
avoid  the  collision  not  belonging  to  sailing-vessels,  even  if  they 
have  a  free  wind,  the  master  having  the  steamer  under  his  com- 
mand, both  by  changing  the  helm  and  by  stopping  or  reversin.55 
the  engines. 

As  a  general  rule,  therefore,  when  nieeting  a  sailing-vessel, 
whether  close-hauled  or  with  the  wind  free,  the  latter  has  a  right 
to  keep  her  course,  and  it  is  the  duty  of  the  steamer  to  adopt 
such  precautions  as  will  avoid  her. 

Rev.  Stat.,  §  4233  in  addition  to  the  sailing  and  steerinc^ 
rules  above  mentioned  provides  rules  for  the  display  of  lights 
and  the  use  of  fog  signals  by  different  classes  of  vessels  on 
different  occasions.  Briefly  stated  these  rules  provide  that  in 
the  night  all  vessels  in  motion  shall  carry  a  green  light  on  the 
storboard  side  and  a  red  light  on  the  port  side.  Ocean  steam- 
ships and  steamers  carrying  sail  carry  in  addition  a  white  light 
on  the  foremast  head  ;  coasting  steamers  a  central  range  of  two 
white  lights ;  and  steamers  towing  other  vessels  two  white 
mast-head  lights  arranged  vertically.  All  vessels  at  anchor  in 
a  roadstead  must  must  show  a  white  light. 

In  foggy  weather  a  steamer  under  way  must  sound  a  steam- 
whistle  at  intervals  of   not   more  than  one  minute.     Sailing- 


350  THE  LAW  OF  SHIPPING. 

vessels  under  way  must  sound  a  fog  horn  at  intervals  of   not 
more  than  five  minutes. 

Both  steamers  and  sailing-vessels  at  anchor  must  sound  a 
bell  at  intervals  of  not  more  than  five  minutes. 

For  any  misdeed  of  the  master,  for  which  the  owner  is  liable, 
this  liability  is  limited  in  our  own  country,  as  v/ell  as  in  many 
others,  to  the  value  of  the  ship  and  freight. 

SECTION    XI. 

THE   SEAMEN. 

The  law  makes  no  important  distinction  between  the  officers, 
or  mates,  as  they  are  usually  called,  and  the  common  sailors. 
Our  statutes  contain  many  provisions  in  behalf  of  the  seamen, 
and  in  regulation  of  their  rights  and  duties,  although  the  con- 
tract between  them  and  the  ship-owner  is  in  general  one  of 
liiring  and  service.  They  relate  principally  to  the  following 
points:  ist,  the  shipping  articles;  2d,  wages;  3d,  provisions 
and  subsistence  ;  4th,  the  seaworthiness  of  the  ship  ;  5th,  the 
care  of  seamen  in  sickness ;  6th,  the  bringing  them  home  from 
cjbroad  ;  7th,  regulation  of  punishment. 

First.  Every  master  of  a  vessel  bound  from  a  port  in  the 
United  States  to  any  foreign  port,  or  of  any  ship  or  vessel  of 
the  burden  of  fifty  tons  or  upwards,  bound  from  a  port  in  one 
State  to  a  port  in  any-  other  State,  is  required  to  have  shipping 
articles,  which  articles  every  seaman  on  board  must  sign,  under 
a  penalty  of  twenty  dollars  for  every  person  who  does  not  sign, 
and  they  must  describe  accurately  the  voyage,  and  the  terms  on 
which  each  seaman  ships.  Courts  will  protect  seamen  against 
uncertain  or  catching  language,  and  against  unusual  and  op- 
pressive stipulations.  And  the  shipping  articles  ought  to  declare 
explicitly  the  ports  of  the  beginning  and  of  the  termination  of 
the  voyage.  If  a  number  of  ports  are  mentioned,  they  are  to 
be  visited  only  in  their  geographical  and  commercial  order,  and 
not  revisited  unless  the  articles  give  the  master  a  discretion. 
Admiralty  courts  enforce  the  stipulations  if  they  are  fair  and 
legal,  or  disregard  them  if  they  are  otherwise,  and  exercise  a 
liberal  equity  on  this  subject;  but  courts  of  common  law  are 
more  strictly  bound  by  the  letter  of  the  contract.     The  articles 


SEAMEN.  351 

are  generally  conclusive  as  to  wages ;  but  accidental  errors  cr 
omissions  may  be  supplied  or  corrected  by  either  party,  by 
parol. 

Second.  Wages  are  regulated  as  above  stated,  and  also  by 
limiting  the  right  to  demand  payment  in  a  foreign  port  to  one- 
third  the  amount  then  due,  unless  it  be  otherwise  stipulated. 
Seamen  have  a  lien  on  the  ship  and  on  the  freight  for  their 
wages,  which  is  enforceable  in  Admiralty.  By  the  ancient  rule, 
that  freight  is  the  mother  of  wages,  any  accident  or  misfortune 
which  makes  it  impossible  for  the  ship  to  earn  its  freight  destroys 
the  claim  of  the  sailors  for  wages.  The  reason  is,  to  hold  out 
to  the  seamen  the  strongest  possible  inducement  to  enable  the 
ship  to  carry  the  goods  and  earn  the  freight. 

Third.  Provisions  of  due  quality  and  quantity  must  be  fur- 
nished by  the  owner,  and  double  wages  are  given  to  the  seamen 
when  on  short  allowance,  unless  the  fiecessity  be  caused  by 
some  peril  of  the  sea,  or  other  accident  of  the  voyage.  The 
master  may  at  any  time  put  them  on  a  fair  and  proper  allowance 
to  prevent  waste. 

Foui'tJi.  The  owner  is  bound  to  provide  a  seaworthy  vessel, 
and  our  statutes  provide  the  means  of  lawfully  ascertaining  her 
condition  at  home  or  abroad,  by  a  regular  survey,  on  complaint 
of  the  mate  and  a  majority  of  the  seamen.  But  this  very  sel- 
dom occurs  in  practice.  If  seamen,  after  being  shipped,  refuse 
to  proceed  upon  their  voyage,  and  are  complained  of  and  arrested, 
the  court  will  inquire  into  the  condition  of  the  vessel,  and  if  the 
complaint  of  the  seamen  is  justified,  in  a  greater  or  less  degree^ 
will  discharge  them,  or  mitigate  or  reduce  their  punishment. 

Fifth.  As  to  sickness,  our  statutes  require  that  every  ship 
of  the  burden  of  one  hundred  and  fifty  tons  or  more,  navigated 
by  ten  persons  or  more  in  the  whole,  and  bound  on  a  voyage 
without  the  limits  of  the  United  States,  and  also  that  vessels  of 
seventy-five  tons  or  more,  navigated  by  six  or  more  persons  in 
the  whole,  bound  from  the  United  States  to  any  port  in  the 
West  Indies,  shall  have  a  proper  medicine-chest  on  board. 
Moreover,  twenty  cents  a  month  are  deducted  from  the  wages 
of  every  seaman  to  make  up  a  fund  for  the  maintenance  of 
marine  hospitals,  to  which  every  sick  seaman  may  repair  with- 


352 


THE  LA  W  OF  SHIPPING. 


out  charge.  In  addition  to  t?iis  the  general  law-merchant 
requires  every  ship-owner  or  m.''.ster  to  provide  suitable  medicine, 
medical  treatment,  and  care,  for  every  seaman  who  becomes 
sick,  wounded,  or  maimed,  in  the  service  of  the  ship,  at  home  or 
abroad,  at  sea  or  on  shore ;  unless  this  is  caused  by  the  miscon- 
duct of  the  seaman  himself.  The  right  to  these  things  extends 
to  the  officers  of  the  ship. 

Sixth.  The  right  of  the  seaman  to  be  brought  back  to  his 
own  home  is  very  jealously  guarded  by  our  laws.  The  master 
should  always  present  his  shipping  articles  to  the  consul  or 
commercial  agent  of  the  United  States,  at  every  foreign  port 
which  he  visits,  but  is  not  required  by  lav/  to  do  this  unless  the 
consul  desires  it.  He  must,  however,  present  them  to  the  first 
boarding  officer  on  his  arrival  at  a  home  port.  And  if,  upon  an 
arrival  at  a  home  port  from  a  foreign  voyage,  it  appears  that  an} 
of  the  seamen  are  missing,  the  master  must  account  for  theii 
absence.  If  he  discharge  a  seaman  abroad  with  his  consent,  he. 
must  pay  to  the  American  consul  of  the  port,  or  the  commercial 
agent,  over  and  above  the  wages  then  due,  three  months'  wages, 
of  which  the  consul  gives  two  to  the  seaman,  and  remits  one  to  the 
treasury  of  the  United  States  to  form  a  fund  for  bringing- home, 
seamen  from  abroad.  This  obligation  does  not  apply  where  the 
seaman  is  discharged  because  the  voyage  is  necessarily  broke];\ 
up  by  a  wreck,  or  similar  misfortune.  But  proper  measures  must 
be  taken  to  repair  the  ship  if  possible,  or  to  obtain  her  restora- 
tion, if  captured.  And  the  seamen  may  hold  on  for  a  reasonable 
time  for  this  purpose,  and  if  discharged  before,  may  claim  the 
extra  wages. 

Our  consuls  and  commercial  agents  may  authorize  the  dis- 
charge of  a  seaman  abroad  for  his  gross  misconduct,  and  he  then 
has  no  claim  for  the  extra  wages.  On  the  other  hand,  if  he  be 
treated  cruelly,  or  if  the  ship  be  unseav/orthy  by  her  ov.m  fault, 
or  if  the  master  violate  the  shipping  articles,  the  consul  or 
commercial  agent  may  direct  the  discharge  of  the  seaman  ;  and 
he  then  has  a  right  to  these  extra  wages,  and  this  even  if  the 
seaman  had  deserted  the  ship  by  reason  of  such  cruelty.  They 
may  also  send  our  seamen  home  in  American  ships,  which  are 
bound  to  bring  them  for  a  compensation  not  to  exceed  ten  dol- 


PILOTS. 


y:>i 


lars  each,  and   the  seamen  so   sent  must  work  and   obey  as  if 
originally  shipped.     It  is  of  great  importance  that  the  powers 
and  duties  of  our  consuls  abroad  should  be  distinctly  defined 
and  well  known.     And  Congress  has  recently  enacted  an  excel 
lent  statute  on  this  subject. 

If  a  master  discharges  a  seaman  against  his  consent,  and 
without  good  cause,  in  a  foreign  port,  he  is  liable  to  a  fine 
of  five  hundred  dollars,  or  six  months'  imprisonment.  And  a 
seaman  may  recover  full  indemnity  or  compensation  for  his 
loss  of  time,  or  expenses  incurred  by  reason  of  such  discharge. 

Seventh.  As  to  the  regulation  of  punishment,  flogging  has 
been  abolished  and  prohibited  by  law.  Flogging  means  the  use 
of  the  cat,  or  a  similar  instrument,  but  not  necessarily  blows 
of  the  hand,  or  a  stick  or  a  rope.  Desertion,  in  maritime 
law,  is  distinguished  from  absence  without  leave,  by  the 
intention  not  to  return.  This  intention  is  inferred  from  a 
refusal  to  return.  If  he  returns  and  is  received,  this  is  a  con- 
donation (or  forgiving)  of  the  offence,  and  is  a  waiver  of  the 
forfeiture.  If  he  desert  before  the  voyage  begins,  he  forfeits 
the  advanced  wages,  and  as  much  more ;  but  he  may  be 
apprehended  by  a  warrant  of  a  justice,  and  forcibly  compelled 
to  go  on  board,  and  this  is  a  waiver  of  the  forfeiture.  By 
desertion  on  the  voyage,  he  forfeits  all  his  wages  and  all  his 
property  on  board  the  ship,  and  is  liable  to  the  owner  for  all 
damages  sustained  in  hiring  another  seaman  in  his  place. 

Desertion,  under  the  statute  of  the  United  States  on  th.  5 
subject,  is  a  continued  absence  from  the  ship  for  more  thai 
forty-eight  hours  without  leave,  and  there  must  be  an  entry  in 
the  log-book  of  the  time  and  circumstance.  But  any  desertion 
or  absence  without  leave,  at  a  time  when  the  owner  has  a  right 
to  the  seaman's  service,  is  an  offence  by  the  law-merchant, 
giving  the  owner  a  right  to  full  indemnity. 

SECTION  XII. 

PILOTS. 

An  Act  of  Congress  authorizes  the  several  States  to  make 
their  own  pilotage  laws,  and  questions  under  these  laws  are 
23 


354 


T}IE  LAW  OF  SHIPPING. 


cognizable  in  the  State  courts.  No  one  can  act  as  pilot,  and 
claim  the  compensation  allowed  by  law  for  the  service,  unless 
duly  appointed.  And  he  should  always  have  with  him  his 
commission,  which  should  always  designate  the  largest  vessel 
he  may  pilot,  or  that  which  draws  the  most  water.  If  a  pilot 
offers  himself  to  a  ship  that  has  no  pilot,  and  that  is  entering 
or  leaving  a  harbor  and  has  not  already  reached  certain  geo- 
graphical limits,  the  ship  must  pay  him  pilotage  fees,  whether 
his  services  are  accepted  or  not.  As  soon  as  the  pilot  stands 
on  deck,  he  has  control  of  the  ship.  But  it  remains  the  mas- 
ter's duty  and  power,  in  case  of  obvious  and  certain  disability, 
or  dangerous  ignorance  or  error,  to  disobey  the  pilot,  and  dis- 
possess him  of  his  authority ;  but  the  master  should  interfere 
\uith  the  pilot  only  in  extreme  cases.  If  a  ship  neglect  to  take 
a  pilot  when  it  should  and  can  take  one,  the  owners  will  be 
answerable  in  damages  to  shippers  or  others  for  any  loss  which 
may  be  caused  by  such  neglect  or  refusal.  Pilots  are  themselves 
answerable  for  any  damage  resulting  from  their  own  negligence 
or  default,  and  have  been  held  strictly  to  this  liability. 

SECTION  XIII. 

MATERIAL   MEN. 

Maritime  law  calls  by  this  name  all  persons  employed  to 
jepair  a  ship  or  furnish  her  supplies.  Such  persons,  and  indeed 
all  who  work  upon  her,  have  a  lien  on  the  ship  for  their  charges. 
There  is,  however,  this  important  distinction.  Material  men, 
by  Admiralty  law,  have  a  lien  only  on  foreign  ships,  and  not  on 
domestic  ships.  But  many  of  our  States  have  by  statute  given 
this  lien  to  material  men  on  all  ships  without  distinction  ;  as  in 
New  York,  Pennsylvania,  Massachusetts,  Maine,  Illinois,  Indiana, 
Missouri,  Alabama,  and  Michigan  ;  and  in  Louisiana  the  same 
Jien  exists  under  the  general  Spanish  law. 

It  has  been  held  that  such  a  lien  extends  beyond  mere 
repairs, — certainly  to  alterations,  and  perhaps  to  reconstruc- 
tion,— but  not  to  original  building,  unless  the  statute  includes 
ship-building.  A  laborer,  employed  in  general  work  by  a  ship- 
wright or  mechanic,  and  by  him   sometimes  employed  on  the 


COMMERCIAL  FORMS.  355 

vessel,  and  sometimes  elsewhere,  gets  no  lien  on  the  vessel  for 
that  part  of  the  labor  performed  about  it.  These  statute  liens 
take  precedence  of  the  claims  of  all  other  creditors. 

It  has  been  said  in  previous  pages,  that  our  States  are  for- 
eign to  each  other  for  most  purposes  under  the  law  of  Admi- 
ralty ;  and  they  are  so  as  to  the  lien  of  material  men.  There- 
fore, in  States  in  which  there  is  no  statute  on  the  subject,  mate- 
rial men  would  have  a  lien  for  supplies  or  repairs  for  a  vessel 
belonging  to  any  other  of  our  States,  but  not  for  a  vessel 
belonging  to  the  State  in  which  the  supplies  were  furnished  or 
the  repairs  were  made.     See  the  chapter  on  Liens. 

(91.) 

Bill  of  Sale  of  Vessel. 

To  all  to  -whom  these  Presents  shall  come,  Greeting :    Know  ye, 
that  {jiame  of  seller)  oi  \\-\Q  {town  or  city  and  county 

where  he  resides)  in  the  State  of  owner  {if  the  seller 

owns  only  a  part  of  the  vessel,  here  say  what  pari)  of  the  {ship,  or  what  else 
it  is)  or  vessel  called  the  of  the  burden  of 

tons,  or  thereabouts,  for  and  in  consideration  of  the  sum  of 

dollars,  lawful  mx)ney  of  the  United  States  of  America,  to  me 
{or  7/s,  if  more  sellers  than  one)  in  hand  paid,  before  the  ensealing  and  deliv- 
ery of  these  presents,  by  {name  of  the  buyer)  the  receipt  whereof  1  {or  we) 
do  hereby  acknowledge,  have  granted,   bargained,  and  sold,  and  by  these 
presents  do  grant,  bargain,  and  sell,  unto  the  said  {fiame  of  the  buyer) 

and  his 
executors,  administrators,  and  assigns,  the  whole 

[or  name  the  part)  of  said  or  vessel,  together  with 

the  masts,  bowsprit,  sails,  boats,  anchors,  cables,  tackle,  apparel,  and  furni- 
ture, and  all  other  necessaries  thereunto  appertaining  and  belonging.  The 
certificate  of  the  enrollment  of  which  said  of 

vessel,  is  as  follows  : 

No.  ENROLLMENT. 

In  conformity  to  an  Act  of  Congress  of  the  United  States  of  Americri, 
entitled  "  An  Act  for  enrolling  and  licensing  Ships  and  Vessels,"  etc.,  pass  d 
the  1 8th  of  February,  1793  ;  and  "  An  Act  to  regulate  the  Foreign  and  Coast- 
ing Trade  on  the  Northern,  North-eastern,  and  North-western  Frontiers  of 
the  United  States,  and  for  other  purposes,"  passed  the  17th  of  June,  1864, 
and  all  the  acts  of  the  7th  July,  1838,  29th  July,  1850,  and  6th  May,  1864 
{name  of  the  owner)  having  taken  or  subscribed  the  oath  required  by 
the  said  acts,  and  having  sworn  that         he  citizen  of 


556  THE  LAW  OF  SHIPPhXG. 

the  United  States,  and  sole  owner,  or  owners  of  the  or 

vessel,  called  the  of  whereof 

is  at  present  master ;  and  is  a 
citizen      of  the  United  States,  and  that  the  said  or 

vessel  was  built  at  in  the  year  i8         ,  as  appears  by 

And  having  certified  that  the  said 

vessel  has  deck,  mast     ,  and  that  her  length  is 

feet,  her  breadth  feet,  her  depth 

feet,  her  i  and  that  she  measures 

tons  and  hundredths. 

Tonnage.         iJo 

Capacity  under  tonnage  deck, 

Capacity  between  decks  above  tonnage  deck,  .  . 
Capacity  of  enclosure  on  upper  deck,  .... 
Total  tonnage, »     .     .     .     . 

that  she  is  {kind of  vessel)  and  that  she  has  a  figure-head  or  a  gallery. 

And  the  said  .  having  agreed  to  the  descriptiob 

and  admeasurement  above  specified,  and  sufficient  security  having  been  given, 
in  conformity  with  the  terms  of  the  said  acts,  the  said 
has  been  duly  enrolled  at  the  port  of 

Given  under  my  hand  and  seal  of  office,  at  the  port  of 
this  day  of  in  the  year  one  thousancl 

eight  hundred  and 

Collector. 

To  Have  and  to  Hold  the  said  or  vessel,  and  appui  - 

tenances  thereunto  belonging,  to  him  {or  them\  the  said  {name  of  the 

buyer)  and  his  {or  their)  executors,  administrators,  and  assigns,  to  the  sole 
and  only  proper  use,  benefit,  and  behoof  of  him  {or  them),  the  said 
{name  of  the  buyer)  and  his  {or  their)  executors,  administrators,  and  assigns 
forever;  and  I  {or  we)  the  said  {name  of  the  seller)  ha  and  by  these  pres- 
ents do  promise,  covenant,  and  agree,  for  myself  {or  ourselves)  and  my  {or 
our)  heirs,  executors,  administrators,  and  assigns,  to  and  with  the  said 
{name  of  buyer)  and  with  his  {or  their)  heirs,  executors,  administrators,  and 
assigns,  to  warrant  and  defend  the  said  or  vessel,  and  all 

the  other  before-mentioned  appurtenances  against  the  lawful  claims  and. 
demands  of  all  and  every  person  or  persons  whomsoever,  and  that  I  {or  we) 
ha  good  right  and  authority  to  sell  and  dispose  of  the  same  in  manner 
aforesaid. 

In  Testimony  "Whereof,  The  said  has  hereunto 

set  his  hand  and  seal,  this  day  of 

one  thousand  eight  hundred  and 

{Signature.)        {Seal.) 
Sealed  and  Delivered  in  the  Presence  of 


COMMERCIAL  FORMS.  357 

State  of 


ss. 
County, 

I,  a  Notary  Public  in  and  for  the  in  the 

County  of  and  State  of  ,  do  hereby  certify, 

that  personally  known  to  me  as  the  same  person        whose 

name  subscribed  to  the  annexed  instrument  of  writing,  appeared  before 
me  this  day  in  person,  and  acknowledged  that  signed,  sealed, 

and  delivered  the  said  instrument  or  writing  as  free  and 

voluntary  act,  for  the  uses  and  purposes  therein  set  forth. 

Given  under  my  hand  and  notarial  seal,  this  day  of 

A.D.  18 

Notary  Public, 
(92.) 

Mortgage  of  a  Vessel. 

Know  all  Men  by  these  Presents,  That  I  {or  we,  giving  the  na7nes 
d  nd  residence  of  all  the  mortgagors)  am  {or  are) 

lield  and  firmly  bound  unto  {the  names  and  residence  of  the  mortgagee)  in 
the  just  and  full  sum  of  dollars,  lawful  money  of  the  United 

States  of  America,  to  be  paid  to  the  said  or  his  {or  their) 

^xecutors,  administrators,  or  assigns;  for  which  payment  well  and  truly  to  be 
made,  I  bind  myself,  my  heirs,  executors,  and  administrators 
firmly  by  these  presents. 

Dated  at  this  day  of  in 

the  year  one  thousand  eight  hundred  and 

Whereas,  {najne  of  the  mortgagee)  has  this  day  lent  and  advanced 

i»nto  the  said         {name  of  the  tnortgagor)  the  sum  of  dollars 

'■»n  the  body,  tackle,  and  appurtenances  of  the 

or  vessel  called  the  of  the  burden  of  tons,  or 

Thereabouts;  the  said  {name  of  the  mortgagor)  being  the  {owner) 

of  the  same. 

Now  the  Condition  of  this   Obligation  is  such,    That  if   the   said 
{name  of  the  moi-tgagoj-)  shall  pay  or  cause  to  be  paid  to  the  said  {name 

of  the  mortgagee)  the  sum  of  dollars  (the  amount  loaned),  and 

interest  thereon  on  or  before  the  day  of 

in  the  year  18 

then  this  obligation  to  be  void ;  otherwise,  to  remain  in  full  force  and 
virtue.  And  in  consideration  of  and  as  security  for  said  loan  as  aforesaid, 
the  said  {vessel,  or  ship,  or  steamer,  as  it  may  he)  is  by  these  presents 

assigned,  pledged,  mortgaged,  set  over,  and  conveyed  to  the  said 

heirs  and  assigns  ;  the  certificate  of  the  enrollment  of  which  vessel 
is  as  follows,  viz. : 
{Enrollment  as  in  the  previous  form  of  a  Bill  of  Sale  of  a  Vessel.) 


358  THE  LA  IV  OF  SHIPPING. 

It  being  Mutually  Understood  and  Agreed,  Tliat  in  case  the  amount 
of  said  loan  and  interest,  or  any  part  thereof,  according  to  the  terms  of 
these  presents,  shall  remain  due  and  unpaid  to  said  {navie  of  mortgagee) 
after  the  expiration  of  ,  the  said  {name  of  mortgagee)  may 

take  possession  of  said  and  appurtenances,  and  sell  the 

same  at  public  auction,  in  order  to  satisfy  the  amount  then  due,  without  any 
proceedings  in  court  or  otherwise,  for  the  purpose  of  authorizing  such  sale, 
and  thereupon  may  execute  and  deliver  a  sufficient  bill  of  sale  to  transfer 
completely  to  any  purchaser  or  purchasers  all  title  and  property  in  and  to 
the  said  and  appurtenances,  to  the  said  {name  of 

inortgagor~)  as         {owner)  thereof,  now  belonging. 

The  said       {name  of  the  mortgagee)  thereupon  to  account  to  the  said 
{name  of  the  7nortgagor)  for  any  surplus   of    such    sale,  after   paying   all 
charges  and  expenses. 

And  in  case  of  such  sale  as  aforesaid,  the  said  {name  of  the  tnort- 
gagor)  executors,  administrators,  or  assigns,  shall,  whenever  thereto  re- 
quested, make,  execute,  and  deliver  to  such  purchaser  or  purchasers,  another 
bill  of  sale  of  said  an  1  appurtenances,  in  which  the 

enrollment  shall  be  recited  as  above,  for  the  transferring  completely  to  said 
purchaser  or  purchasers  all  the  {right),  {interest),  and  {claim),  of  said 
executors,  admiaistrators,  or  assigns,  as         {owner)  of  said 

.     And  in  default  of  the  prompt  execution  and  delivery  of  sucK 
other  bill  of  sale  to  such  purchaser  or  purchasers,  by  the  said 
when  thereto  requested,  the  said  is  hereby  constituted 

and  appointed  the  legal  attorney  of  the  said  for  the  purpose 

of  making,  executing,  and  delivering  such  bill  of  sale,  and  the  said 
hereby  ratifies  and  confirms  the  act  of  the  said  as 

attorney  for  said  purpose. 

And  it  is  hereby  further  Agreed,  That  insurance  shall  be  made  at 
some  office  in  on  the  said  for  the  security  of  thn 

said  {name  of  the  mortgagee)  to  an  amount  not  less  than  the  sum  loaned 
as  aforesaid,  and  the  said  {name  of  the  mortgagee)  is  hereby  authorized 
to  procure  such  insurance,  at  the  expense  of  the  said  {7ia7iie  of  the  tnort- 
gagor)  if  not  seasonably  obtained  by  him. 

{Signature.)        {Seal.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 
( Witness) 

State  of  "^ 

>-ss. 
County  of  ) 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came 

the  individual  described  in,  and  who  executed  the  foregoing  instrument, 
and  acknowledged  that    he     executed  the  same. 


COMMERCIAL  FORMS.  359 

(93.) 
A  Charter-Party. 
This  Charter-Party,  Made  and  concluded  upon  in  the 

day  of  in  the  year  one  thousand  eight 

hundred  and  between         (nai/ie  of  the  owner)  owner  of 

the  of  of  the  burden  of  tons 

or  thereabouts,  register  measurement,  now  lying  in  the  harbor  of 
of  the  first  part,  and  {name  of  the  hirer)  of  the  second  part,  witnesseth, 

that  the  said  part  of  tl.e  first  part,  for  and  in  consideration  of  the  covenants 
and  agreements  hereinafter  mentioned,  to  be  kept  and  performed  by  the  said 
part  of  the  second  part,  do  covenant  and  agree  on  the  freighting  and 
chartering  of  the  said  vessel  unto  the  said  part  of  the  second  part,  for  the 
voyage  from  the  port  of 

on  the  terms  following  ;  that  is  to  say, — 

First.  The  said  part  of  the  first  part  do  engage  that  the  said  vessel 
in  and  during  the  said  voyage  shall  be  kept  tight,  stanch,  well-fitted,  tackled, 
and  provided  with  every  requisite,  and  with  men  and  provisions  necessary 
for  such  a  voyage. 

Second.  The  said  part  of  the  first  part  do  further  engage  that  the 
whole  of  said  vessel  (with  the  exception  of  the  cabin,  the  deck,  and  the 
necessary  room  for  the  accommodation  of  the  crew,  and  of  the  sails,  cables, 
and  provisions)  shall  be  at  the  sole  use  and  disposal  of  the  said  part  of  the 
second  part  during  the  voyage  aforesaid  ;  and  that  no  goods  or  inerchandisf 
whatever  shall  be  laden  on  board,  otherwise  than  from  the  said  part  of  the 
second  part,  or  agent,  without  consent,  on  pain  of  forfeiture  o\ 

the  amount  of  freight  agreed  upon  for  the  same. 

Third.  The  said  part  of  the  first  part  do  further  engage  to  take  and 
receive  on  board  the  said  vessel,  during  the  aforesaid  voyage,  all  such  lawfu. 
goods  and  merchandise  as  the  said  part     of  the  second  part,  or  agents, 

may  think  proper  to  ship. 

And  the  said  part  of  the  second  part,  for  and  in  consideration  of  the 
covenants  and  agreements  to  be  kept  and  performed  by  the  said  part  of  the 
first  part,  do  covenant  and  agree  with  the  said  part  of  the  first  part,  to 
charter  and  hire  the  said  vessel  as  aforesaid,  on  the  terms  following,  that  is 
to  say : — 

First.  The  said  part  of  the  second  part  do  engage  to  provide  and 
furnish  to  the  said  vessel 

Second.  The  said  part  of  the  second  part  do  further  engage  to  pay 
to  the  said  part     of  the  first  part,  or  agent,  for  the  charter  or  freight 

of  the  said  vessel  during  the  voyage  aforesaid,  in  the  manner  following,  that 
is  to  say: — 

It  is  further  agreed  between  the  parties  to  this  instrument,  that  the  said 


360  THE  LA  IV  OF  SHIPPING. 

part  of  the  second  pari  shall  be  allowed,  for  the  loading  and  discharging 
of  the  vessel  at  the  respective  ports  aforesaid,  lay  days  as  follows,  that  is  to 
say : — 

and  in  case  the  vessel  is  longer  detained,  the  said  part  of  the  second  part 
agree  to  pay  to  the  said  part     of  the  first  part,  demurrage  at  the  rate  of 

Spanish  milled  dollars  per  day  for  each  and  every  day  so  detained, 
provided  such  detention  shall  happen  by  default  of  the  said  part  of  the 
second  part,  or  agent. 

It  is  further  understood  and  agreed,  that  the  cargo  shall  be  received  and 
delivered  alongside  within  reach  of  the  vessel's  tackles. 

It  is  also  further  understood  and  agreed,  that  this  charter  shall  commence 
when  the  vessel  is  ready  to  receive  cargo  at  her  place  of  loading,  and  notice 
thereof  is  given  to  the  part     of  the  second  part,  or  to  agent     . 

To  the  true  and  faithful  performance  of  all  the  foregoing  covenants  and 
agreements,  the  said  parties,  each  to  the  other,  do  hereby  bind  themselves, 
their  executors,  administrators,  and  assigns,  and  also  the  said  vessel,  freight, 
tackle,  and  appurtenances;  and  the  merchandise  to  be  laden  on  board,  each 
to  the  other,  in  the  penal  sum  of 

In  Witness  Whereof,  The  said  parties  have  hereunto  interchangeably 
set  their  hands  and  seals,  this  day  of  18 

{Signatures.)       {Seals.) 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 
( IVitnesses.) 

(94.) 

A  Bill  of  Lading. 

Shipped,  in  good  order  and  well  conditioned,  by  {name  of  the  ship- 

per) on  board  the  called  the  whereof 

is  master,  now  lying  in  the  port  of  and  bound 

ror 
To  say  : — {here  describe  or  enumerate  the  parcels) 

being  marked  and  numbered  as  in  the  margin,  and  are  to  be  delivered  in  the 
like  good  order  and  condition,  at  the  aforesaid  port  of  (the 

dangers  of  the  seas  only  excepted),  unto  {the  name  of  the  consignee)  or  to 
assigns,  he  or  they  paying  freight  for  the  said 
{here  specify  the  rate  of  freight  agreed  to  be  paid) 
with  primage  and  average  accustomed. 

In  Witness  Whereof,  The  master  or  purser  of  the  said  vessel  hath 
affirmed  to  bills  of  lading,  all  of  this  tenor  and  date  ;  one  of 

which  being  accomplished,  the  others  to  stand  void. 

Dated  in  the  day  of  18 

{Signatti'^e.) 


COMMERCIAL  FORMS.  36 1 

(95.) 
Shipping  Articles,  in  Common  Use. 

United  States  of  America.     It  is  agreed,  between  the  master  and  sea- 
men, or  mariners,  of  the  {name  of  the  vessel)  of 
whereof 

is  at  present  master,  or  whoever  shall  go  for  master,  now  bound  from  the  port 
of  ,  to 

And  it  is  hereby  expressly  agreed,  that  should  the  said  ship  on  the  said 
voyage  be  seized,  detained,  or  fined,  for  smuirgling  tobacco,  or  any  other 
article,  by  one  or  more  of  the  undersigned  sailors,  cooks,  or  stewards,  they 
shall  all  be  responsible  for  the  damages  thence  resulting,  and  shall  severally 
forfeit  their  wages,  and  all  their  goods  and  chattels  on  board,  to  the  amount 
of  such  damage,  and  that  the  certificate  of  the  person  or  persons  who  may 
seize,  detain,  or  fine  the  said  ship  for  smuggling,  signed  by  him  or  them,  and 
verified  by  the  American  consul  at  under  his  seal  of  office,  shall 

t  e  conclusive  evidence  of  the  facts  therein  stated,  in  all  courts  whatsoever, 
especially  and  as  to  the  fact  that  smuggling  had  been  committed,  the  indi- 
vidual or  individuals  by  whom  the  same  had  been  committed,  the  amount  of 
tlie  fine  imposed  therefor  upon  the  said  ship,  the  incidental  expenses  thereon, 
and  the  number  of  days  the  said  ship  was  detained  in  consequence  thereof. 
No  grog  allowed,  and  none  to  be  put  on  board  by  the  crew  ;  and  no  profane 
language  allowed,  nor  any  sheath-knives  permitted  to  be  brought  or  used  on 
board. 

That,  in  consideration  of  the  monthly  or  other  wages  against  each  respec- 
tive seaman  or  mariner's  name  hereunder  set,  they  sev^erally  shall  and  will 
perform  the  above-mentioned  voyage :  And  the  said  master  doth  hereby 
agree  with  and  hire  the  said  seamen  or  mariners  for  the  said  voyages,  at 
such  monthly  wages  or  prices,  to  be  paid  pursuant  to  this  agreement,  and 
the  laws  of  the  Congress  of  the  United  States  of  America :  And  they,  the 
said  seamen  or  mariners,  do  severally  hereby  promise  and  obhge  themselves 
to  do  their  duty,  and  obey  the  lawful  commands  of  their  officers  on  board  the 
said  vessel,  or  the  boats  thereunto  belonging,  as  become  good  and  faithful 
seamen  or  mariners  ;  and  at  all  places  where  the  said  vessel  shall  put  in,  or 
anchor  at,  during  the  said  voyage,  to  do  their  best  endeavors  for  the  preser- 
vation of  the  said  vessel  and  cargo,  and  not  to  neglect  or  refuse  doing  their 
duty  by  day  or  night,  nor  shall  go  out  of  the  said  vessel  on  board  any  other 
vessel,  or  be  on  shore,  under  any  pretence  whatsoever,  until  the  above-said 
\oyage  be  ended,  and  the  said  vessel  be  discharged  of  her  loading,  without 
leave  first  obtained  of  the  captain  or  commanding  officer  on  board  ;  that  in 
default  thereof,  he  or  they  will  be  liable  to  all  the  penalties  and  forfeitures 
mentioned  in  the  Marine  Law,  enacted  for  the  government  and  regulation  of 
seamen  in  the  merchants'  service,  in  which  it  is  enacted,  "  That  if  any  sea- 
man or  mariner  shall  absent  himself  from  on  board  the  ship  or  vessel,  with' 
out  leave  of  the  master  or  officer  commanding  on  board,  and  the  mate  orothe/ 


362 


THE  LA  W  OF  SHIPPING. 


officer  having  charge  of  the  log-book  shall  make  an  entry  therein'of  the  name 
of  such  seaman  or  mariner,  on  the  day  on  which  he  shall  so  absent  himself; 
and  if  such  seaman  or  mariner  shall  return  to  his  duty  within  forty-eight 
hours,  such  seaman  or  mariner  shall  forfeit  three  days'  pay  for  every  day 
which  he  shall  so  absent  himself,  to  be  deducted  out  of  his  wages  ;  but  if  any 
seaman  or  mariner  shall  absent  himself  for  more  than  forty-eight  hours  at 
one  time,  he  shall  forfeit  all  wages  due  to  him,  and  all  his  goods  and  chattels 
which  were  on  board  the  said  ship  or  vessel,  or  in  any  store  where  they  may 
have  been  lodged  at  the  time  of  his  desertion,  to  the  use  of  the  owner  or 
owners  of  the  said  ship  or  vessel,  and  moreover  shall  be  liable  to  pay  him  or 
them  all  damages  which  he  or  they  may  sustain  by  being  obliged  to  hire  other 
seamen  or  mariners  in  his  or  their  place." 

And  it  is  further  agreed,  that  in  case  of  desertion,  death,  or  imprisonment, 
the  wages  are  to  cease. 

And  it  is  further  agreed  by  both  parties,  that  each  and  every  lawful  com- 
mand which  the  said  master  or  other  officer  shall  think  necessary  hereafter 
to  issue  for  the  effectual  government  of  the  said  vessel,  suppressing  immor- 
ality and  vice  of  all  kinds,  shall  be  strictly  complied  with,  under  the  penalty 
of  the  person  or  persons  disobeying  forfeiting  his  or  their  whole  wages  or 
hire,  together  with  everything  belonging  to  him  or  them  on  board  the  said 
vessel. 

And  it  is  further  agreed  on,  that  no  officer  or  seaman  belonging  to  the 
said  vessel  shall  demand  or  be  entitled  to  his  wages,  or  any  part  thereof, 
until  the  arrival  of  said  vessel  at  the  said  vessel's  final  port  of  discharge,  and 
her  cargo  delivered. 

And  it  is  hereby  further  agreed,  between  the  master,  officers  and  seamen 
jf  the  said  vessel,  that  whatever  apparel,  furniture,  and  stores  each  of  them 
may  receive  into  their  charge,  belonging  to  the  said  vessel,  shall  be  accounted 
for  on  her  return  ;  and  in  case  anything  shall  be  lost  or  damaged,  through 
their  carelessness  or  insufficiency,  it  shall  be  made  good  by  such  officer  or 
seaman,  by  whose  means  it  may  happen,  to  the  master  and  owners  of  the  said 
vessel. 

And  whereas,  it  is  customary  for  the  officers  and  seamen,  while  the  vessel 
is  in  port,  or  while  the  cargo  is  delivering,  to  go  on  shore  at  night  to  sleep, 
greatly  to  the  prejudice  of  such  vessel  and  freighters,  belt  further  agreed  by 
the  said  parties,  that  neither  officer  nor  seaman  shall,  on  any  pretence  what- 
ever, be  entitled  to  such  indulgence,  but  shall  do  their  duty  by  day  in  dis- 
charge of  the  cargo,  and  keep  such  watch  by  night  as  the  master  shall  think 
necessary  to  order  relative  to  said  vessel  or  cargo  ;  and  whereas  it  frequently 
happens  that  the  owner  or  captain  incurs  expenses  while  in  a  foreign  port, 
relative  to  the  imprisonment  of  one  or  more  of  his  officers  or  crew,  or  in  the 
attendance  of  nurses,  or  in  the  payment  of  board  on  shore  for  the  benefit  of 
such  person  or  persons  :  now  it  is  understood  and  agreed  by  the  parties  here- 
unto, that  all  such  expenditures  as  may  be  incurred  by  reason  of  the  forego- 
ing premises  shall  be  charged  to,  and  deducted  out  of  the  wages  of,  any  offi- 


COMMERCIAL  FORMS.  T^f)^^ 

cer  or  such  one  of  the  crew  by  whose  means  or  for  whose  benefit  the  same 
shall  have  been  paid. 

And  whereas,  it  often  happens  that  part  of  the  cargo  is  embezzled  after 
being  safely  delivered  into  lighters,  and  as  such  losses  are  made  good  by  the 
owners  of  the  vessel,  be  it  therefore  agreed  by  these  presents,  that  whatever 
officer  or  seaman  the  master  shall  think  proper  to  appoint,  shall  take  charge 
of  her  cargo  in  the  lighters,  and  go  with  it  to  the  lawful  quay,  and  there 
deliver  his  charge  to  the  vessel's  husband,  or  his  representative,  to  see  the 
same  safely  landed. 

That  each  seaman  or  mariner  who  shall  well  and  truly  perform  the  above- 
mentioned  voyage  (provided  always  that  there  be  no  desertion,  plunderage, 
embezzlement,  or  other  unlawful  acts  committed  on  the  said  vessel's  cargo  or 
stores)  shall  be  entitled  to  the  payment  of  the  wages  or  hire  that  may  become 
due  to  him  pursuant  to  this  agreement,  as  to  their  names  is  severally  affixed 
and  set  forth  :  Provided,  nevertheless,  that  if  any  of  the  said  crew  disobey 
the  orders  of  the  said  master  or  other  officer  of  the  said  vessel,  or  absent 
himself  at  any  time  without  liberty,  his  wages  due  at  the  time  of  such  dis- 
obedience or  absence  shall  be  forfeited  ;  and  in  case  such  person  or  persons 
so  forfeiting  wages  shall  be  reinstated  or  permitted  to  do  further  duty,  it  shall 
not  do  away  such  forfeiture.  It  being  understood  and  agreed,  by  the  said 
parties,  that  parol  proof  of  the  misconduct,  absence,  or  desertion  of  any 
officer  or  any  of  the  crew  of  said  vessel,  may  be  given  in  evidence  at  any  trial 
between  the  parties  to  this  contract,  any  act,  law,  or  usage  to  the  contrar}. 
thereof  notwithstanding. 

In  Testimony  "Whereof,  and  for  the  due  performance  of  each  and  every 
of  the  above-mentioned  articles  and  agreements,  and  acknowledgment  of 
their  being  voluntarily,  and  without  compulsion  or  any  other  clandestine  means 
being  used,  agreed  to  and  signed  by  us.  we  have  each  and  every  of  us  here- 
unto affixed  our  hands,  the  month  and  day  against  our  names  as  hereunder 
written. 

And  it  is  hereby  understood  and  mutually  agreed,  by  and  between  the 
parties  aforesaid,  that  they  will  render  themselves  on  board  the  said  vessel, 
on  or  before  the  day  of 

i8  at  o'clock  in  the  noon. 

This  is  signed  by  all  the  officers  and  crew,  under  seventeen 
columns,  which  give  the  following  particulars  :  Date  of  entry, 
names,  stations,  birthplace,  age,  height  in  feet  and  inches,  wages 
per  month,  advance  wages,  advance  abroad,  hospital  money,  time 
of  service  in  months  and  days,  whole  wages,  wages  due,  sureties, 
witness.  On  the  back  of  this  instrument  is  usually  a  receipt  in 
full  in  the  following  words.  It  should  be  remarked,  however, 
that  the  sailor's  discharge  of  all  demands  for  assault  and  battery, 
or  imprisonment,  etc.,  is  of  little,  if  any,  legal  force. 


364  THE  LA  IV  OF  SHIPPING. 

We,  the  undersigned,  late  mariners  on  board  the 
on  her  late  voyage  described  on  the  other  side  of  this  instrument,  and  now 
pertormed  to  this  place  of  payment,  do  hereby,  each  one  for  ourselves,  with 
our  signatures,  acknowledge  to  have  received  of  agent 

or  owner  of  said  the  full  sum  hereunder  set  against  our 

names  ;  being  in  full  amount  of  our  wages  for  our  services,  and  all  demands 
for  assault  and  battery,  or  imprisonment,  of  whatever  name  or  nature,  against 
said  her  owners  or  officers,  to  the  day  or  date  here- 

under also  set  against  our  names. 

{Signatures.) 
(96.) 
A  Bottomry  Bond- 
Know  all  Men  by  these  Presents,  That  I  (name  of  the  master  or  of 
the  owner  if  the  Bond  is  made  by  him),  now  master  and  commander  of  the 
or  vessel  called  the  of  the  burden  of 

tons,  or  thereabouts,  now  lying  in  the  port  of 
am  held  and  firn.ly  bound  unto  {name  of 

^he  lender  who  is  the  obligee  of  t lie  Bond) 

"1  the  sum  of  lawful  money  of  the  United  States  of 

.\nierica,  to  be  paid  to  the  said  or  to 

certain  attorney   ,  executors,  administrators,  or  assigns  ; 
for  which  payment,  well  and  truly  to  be  made,  I  bind  myself,  my  heirs,  exec- 
utors, and  administrators,  and  also  the  said  vessel,  her  tackle,  apparel,  and 
furniture,  firmly  by  these  presents.     Sealed  with  my  seal,  at 
this  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and 

Whereas,  The  above  bounden     {name  of  the  obligor)  has  been  obliged 
'o  take  up  and  borrow,  and  hath  received  of  the  said 

^'or  the  use  of  the  said  vessel,  and  for  the  purpose  of  fitting  the  same  for  sea, 
"he  sum  of  lawful  money  of  the  United  States  of 

America,  which  sum  is  to  be  and  remain  as  a  lien  and  bottomry  on  the  said 
vessel,  her  tackle,  apparel,  and  furniture, 

at  the  rate  or  premium  of  {state  the  rate  of  the  7naritime  interest)  for  the 
voyage.  In  consideration  whereof,  all  risks  of  the  seas,  rivers,  enemies, 
fires,  pirates,  &c.,  are  to  be  on  account  of  the  said  {najne  of  the  lender). 
And  for  the  better  securitv  of  the  said  sum  and  premium,  the  said  master 
doth,  by  these  presents,  hypothecate  and  assign  over  to  the  said 

heirs,  executors,  administrators,  and  assigns,  the  said  vessel,  her 
tackle,  apparel,  and  furniture. 

And  it  is  hereby  declared,  that  the  said  vessel,  is  thus  hypothe- 

cated and  assigned  over  for  the  security  of  the  money  so  borrowed,  and 
taken  up  as  aforesaid,  and  shall  be  delivered  for  no  other  use  or  purpose 
whatever,  until  this  bond  is  first  paid,  together  with  the  premium  hereby 
agreed  to  be  paid  thereon. 


COMMERCIAL  FORMS.  365 

Now  the  Condition  of  this  Obligation  is  such,   That  if  the  above 
bounden  {the  borrower)  shall  well  and  truly  pay,  or 

cause  to  be  paid,  unto  the  said         (the  lender) 

the  just  and  full  sum  of  lawful  money  as  aforesaid,  being  the 

sum  borrowed,  and  also  the  premium  aforesaid,  at  or  before  the  expiration 
of  days  after  the  arrival  of  the  said  vessel  at 

then  this  obhgation,  and  the  said  hypothecation,  to  be  void  and  of  no  effect, 
otherwise  to  remain  in  full  force  and  virtue.  Having  signed  and  executed 
two  bonds  of  the  same  tenor  and  date,  one  of  which  being  accomplished,  the 
other  to  be  void  and  of  no  effect. 

[Signattire.)     {Seal.) 
Signed,  Scaled,  and  Delivered  in  the  Presence  of 

I  do  not  give  the  form  of  a  Respondentia  Bond.  This  con- 
tract is  now  unusual,  and  is  made  only  when  some  special 
emergency  calls  for  it,  and  must  then  be  framed  to  suit  thai 
emergency,  and  express  the  special  terms  of  the  bargain. 
The  foregoing  form,  in  connection  with  what  is  said  of 
Respondentia  Bonds  in  the  text,  and  the  points  in  which  the^ 
resemble  Bottomry  Bonds  and  those  in  which  they  differ  from 
them,  will  enable  any  one  to  frame  a  Respondentia  Bond  suited 
to  most  cases. 

(97.) 

Oath  or  Affirmation  of  Consignee  or  Agent. 
District  and  Port  of  Philadelphia.     I  {name  of  the  consigner} 

do  solemnly  and  truly  swear  ((?r  ^j^rw)  that  the  invoice  and  bill  of  ladinjj 
now  presented  by  me  to  the  collector  of  ,  are  the  true  and 

only  invoice  and  bill  of  lading  by  me  received,  of  all  the  goods,  wares,  and 
merchandise,  imported  in  the  {ftavie  of  the  vessel)  whereof 

is  master,  from  for  account  of  any  person 

whomsoever,  for  whom  I  am  authorized  to  enter  the  same  :  that  the  said 
invoice  and  bill  of  lading  aie  in  the  state  in  which  they  were  actually 
received  by  me,  and  that  I  do  not  know  nor  believe  in  the  existence  of  any 
other  invoice,  or  bi'.l  of  lading  of  the  said  goods,  wares,  and  merchandise  ; 
that  the  entry  now  delivered  to  the  collector  contains  a  just  and  true 
account  of  the  said  goods,  wares,  and  merchandise  according  to  the  said 
invoice  and  bill  of  lading ;  that  nothing  has  been,  on  my  part,  nor  to  my 
knowledge,  on  the  part  of  any  other  person,  concealed  or  suppressed, 
whereby  the  United  States  may  be  defrauded  of  any  part  of  the  duty  lawfully 
due  on  the  said  goods,  wares,  and  merchandise,  and  that  if,  at  any  time 
hereafter,  I  discover  any  error  in  the  said  invoice,  or  in  the  account  now 
rendered  of  the  said  goods,  wares,  and  merchandise,  or  receive  any  other 


366  THE  LAW  OF  SHIPPING. 

invoice  of  the  same,  I  will  immediately  make  the  same  known  to  the  col- 
lector of  the  district 

And  I  do  furtlier  solemnly  and  truly  swear  (or  affi.r7n)  that,  to  the  best  of 
my  knowledge  and  belief,  {name  and  i-esidence  of  the  owner  of  the 

goods)  is  owner  of  the  goods,  wares,  and  merchandise,  mentioned  in  the 
annexed  entry  ;  that  the  invoice  now  produced  by  me  exhibits  the  actual 
cost,  or  fair  market-value,  of  the  said  goods, 

wares,  and  merchandise,  all  the  charges  thereon,  and  no  other  or  different 
discount,  bounty,  or  drawback,  but  such  as  has  been  actually  allowed  on  the 
same.  this  day  of  i8 

{Signattcre) 
Before  me,  Collector. 

(98.) 
Custom  House  Power  of  Attorney,    No,  201. 

Know  all  Men  by  these  Presents,  That  I  {name  of  principal) 

do  make,  constitute,  and  appoint  {name  of  attoriiey)  my  true  and  lawful 

ja:ttorney  for  me,  and  in  my  name  and  stead,  to  enter  in  due  form  of  law,  at 
the  Custom  House  in  the  city  of  all  goods,  wares,  and 

merchandise,  which  have  been  imported  or  may  hereafter  be  imported,  by 

or  which  have  arrived,  consigned,  or 
may  hereafter  arrive,  consigned  to  ,  or  in  which 

or  may  be  interested  or  concerned,  ' 

And  for  me  and  in  my  name  and  stead  to  sign,  seal,  execute,  and  deliver 
all  and  every  bond  and  bonds  which  may  be  required  to  secure  the  duties 
thereon,  or  for  the  transportation  or  exportation  of  the  same  ;  or  any  other 
lx)nd  or  bonds  required  by  the  revenue  laws  or  the  regulations  of  the 
Treasury  Department  of  the  United  States,  or  the  collector  of  the  customs 
of  the  district  of  relative  to  any  such  merchandise  ;  or 

which  may  be  necessary  to  obtain  the  debenture  and  debentures,  upon  such 
of  the  said  goods,  wares,  and  merchandise  as  may  be  exported  for  me  or  on 
my  account.  To  have,  take,  and  receive  all  debenture  certificates  to  be 
issued  thereupon  for  me  and  in  my  name 

to  indorse,  assign,  and  transfer  the  same  ;  or  have,  take,  and  receive  the 
moneys  due  and  to  grow  due  thereon  :  And  generally,  as  my  attorney  to  do, 
transact,  and  perform  all  custom-house  business,  of  what  kind  soever,  in 
which  I  am  or  may  be  interested  or  concerned,  as  fully  and  effectually,  to 
all  intents  and  purposes,  as  I  if  present  there  in  person  could  do ;  also  to 
set  my  seal  to  any  instrument  which  may  be  necessary  in  the  premises,  and 
the  same  to  acknowledge  for  me  to  be  my  deed ;  and  generally  to  do  and 
perform  all  things  relating  to  the  premises,  which  I  could  lawfully  do,  if 
personally  present,  and  as  fully  and  effectually  to  every  intent  aini  purpose, 
although  the  same  should  seem  to  require  more  precise  or  special  authority 
than  is  herein  expressed.  And  especially  authorizing  and  empowering  my 
said  attorney,  for  me  and  in  my  name  and  stead  to  sign,  seal,  execute,  and 


COMMERCIAL  FORMS.  2,^y 

deliver  all  bonch  of  indemnity  and  other  specialties,  and  also  all  other 
documents  which  maybe  necessary  for  effecting  the  premises  ;  hereby  ratify- 
ing all  and  wliatsoever  my  said  attorney  may  lawfully  do  by  virtue  hereof. 

And  I  hereby  further  authorize  my  said  attorney  at  any  time,  and  from 
time  to  time  at  his  discretion,  by  proper  letters  of  attorney,  to  substitute 
any  other  person  or  persons  for  himself  in  my  place,  and  the  same  at  his 
pleasure  to  revoke ;  hereby  giving  to  the  substitute  or  substitutes,  as  full 
power  and  authority  in  the  premises  as  is  hereby  given  to  my  said  attorney. 
And  also  hereby  ratifying  and  confirming  all  and  every  act,  matter,  and 
thing  that  my  said  attorney  or  his  substilule  or  substitutes  may  do  in  the 
premises,  by  virtue  of  these  presents. 

And  it  is  hereby  declared  and  understood,  that  this  power  shall  be  and 
remain  in  full  force  and  virtue  until  revoked  by  written  notice  given  to  the 
collector. 

In  "Witness  Whereof,  I   have    hereunto   set  my   hand   and   seal   this 
day  of  i8 

{Signature.)        {Seal.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of 

Be  it  Known,  That  on  the  day  of  l8 

personally  appeared  and 

acknowledged  before  me  the  foregoing  power  of  attorney  to  be 
free  act  and  deed. 

In  Testimony  'WTiereof,  I  have  hereunto  set  my  hand  and  seal  of  office 
the  day  of  i8 

(99.) 

Maritime  Protest. 
UNITED  STATES  OF  AMERICA. 

Notary. 
State  of  Couxty  of 

By  this  Public  Instrument  of  Protest,  Be  it  known,  that  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight 

nundred  and  before  me,  a  Notary  Public  in 

and  for  the  State  of  County  of  and  dwelling  in 

the  city  of  ,  State  of  ,  duly  commissioned  and 

sworn,  personally  came  and  appeared  {names  of  all  the  parties  who 

make  the  protest,  with  a  description  of  each  of  thetn,  as  to  occupation  and 
residence)  which  said  appearers,  after  having  been  duly  sworn  by 

me,  the  said  notary,  upon  the  Holy  Evangelists  of  Almighty  God,  voluntarily, 
freely,  and  solemnly  declare  and  depose  as  follows,  to  wit :  that  the 
[flame  of  the  vessel,  describing  her  generally),  on  the  day  of 

in  the  year  i8  sailed  from  the  port  of 


368  THE  LA  IV  OF  SHIPPING. 

bound  for  the  port  of  with  a  cargo  of 

that  when  they  started,  as  aforesaid,  the  said  was  stout, 

stanch  and  strong  ;  had  her  cargo  well  and  sufficiently  stowed  and  secured  ; 
was  well  manned,  tackled,  victualled,  apparelled  and  appointed  ;  and  was  in 
every  respect  fit  for  the  voyage  she  was  about  to  undertake  :  And  thereafter, 
on  the  day  of  in  the  year  1 8  {here  must  be  set 

forth  luith  some  minuteness  the  place  of  any  accident  or  loss,  and  th^  circum- 
stances of  the  occurrence) 

Now,  therefore,  because  of  the  premises,  and  as  all  the  loss,  damage  and 
injury  which  already  have  or  may  hereafter  appear  to  have  happened  or 
accrued  to  the  said  or  her  said  cargo,  has  been  occasioned 

solely  by  the  circumstances  hereinbefore  stated,  and  cannot  nor  ought  not 
to  be  attributed  to  any  insufficiency  of  the  said  or  default  of 

him,  the  said  his  officers  or  crew  ;  he  now  requires  me, 

the  said  notary,  to  make  his  protest  and  this  public  act  thereof,  that  the 
same  may  serve  and  be  and  remain  in  full  force  and  virtue,  as  of  right  shall 
appertain.     And  thereupon  the  said  doth  protesi;. 

and  I,  the  said  notary,  at  his  special  instance  and  request,  do,  by  these 
presents,  publicly  and  solemnly  protest  against  winds,  weather  (a;z(f7£-'^af 
ever  else  caused  the  loss,  as  fre,  pirates,  &'c.),  and  against  all  and  eveiy 
accident,  matter  and  thing,  had  and  met  with  as  aforesaid,  whereby  or  ty 
means  whereof  the  said  or  her  cargo,  already  has,  or 

hereafter  shall  appear  to  have  suffered  or  sustained  damage  or  injury,  for 
all  losses,  costs,  charges,  expenses,  damages,  and   injury,  which   the  said 
the  owner  or  owners  of  the  said  or  the 

owners,  freighters  or  shippers  of  her  said  cargo,  or  any  other  person  or 
persons  concerned  in  either,  already  have  or  may  hereafter  pay,  sustain, 
incur,  or  be  put  unto  by,  through,  or  on  account  of  the  premises,  or  for 
which  the  insurer  or  insurers  of  the  said  or  her  cargo, 

is  or  are  respectively  liable  to  pay,  or  make  contribution  or  average,  acconU 
ing  to  custom,  or  their  respective  contracts  or  obligations  ;  so  that  no  pait 
of  such  losses  and  expenses  already  incurred,  or  hereafter  to  be  incurreiil, 
do  fall  upon  him,  the  said  *         his  officers  and  crew. 

We,  {repeat  here  the  names  of  the  appcarers)  do  solemnly  swear  that 

the  foregoing  statement  is  correct,  and  contains  a  true  account  of  all  the  facts 
and  circumstances  of  the  case,  to  the  best  of  our  knowledge. 

{Signatures  of  all  the  appearers.) 

Thus  Done  and  Protested,  at  my  office,  in  the  city  of  ,  this 

day  of  in  the  year  oi  our  Lord  one  thousand 

eight  hundred  and 

Notary  Public,  County  of  State  of 

To  all  to  whom  these  Presents  shall  come,  I,  Notary 

Public,  duly  commissioned  and  qualified,  residing  at  ,  in  the 

County  of  and  State  of  ,  do  hereby  certify 


HOW  THE  CONTRACT  OF  INSURANCE  IS  MADE.     369 

that  the  foregoing,  purporting  to  be  a  copy  of  the  protest  of  the  master  and 

a  part  of  the  crew  of  the  bearing  date  the 

day  of  last,  is  a  true  and  correct  copy  of  said  protest,  which 

was  made  before  me,  examined  and  compared  with  the  original  draft  of  the 

same,  drawn  up  and  recorded  in  my  office,  in  Book  P^ge 

and  following : 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand,  and  affixed  my 
notarial  seal,  this  day  of  A.D.  18 

(Signature.)     {Seal.) 
(100.) 

A  Steamboat  "Warrant,  as  used  in  the  "Western  States. 

Know  all  Men  by  these  Presents,  That  we  {name  of  debtor) 

as  principal,  and  {jtames  of  owners  of  the  steamboat)  owners  of  the 

steamboat  as  security,  are  held  and 

firmly  bound  unto  {name  of  creditor)  in  the  sum  of 

dollars,  for  the  payment  of  which  we  bind  ourselves,  our  heirs,  executors, 
and  administrators,  firmly  by  these  presents.  Sealed  with  our  seals,  and 
dated  this  day  of  eighteen  hundred 

and 

The  Condition  of  the  above  Obligation  is  such,  That,  whereas,  the 
said  {name  of  creditor)  as  plaintiff  has  sued  out  of  the  office  of 

justice  of  the  peace,  a  warrant  against  the  steamboat  {name 

of  tile  steamboat)  returnable  forthwith ;  being  on  a  demand  for  the  sum  of 
dollars,  and  cents. 

Now,  if  the  said  {name  of  the  debtor)  shall  satisfy  the  amount  which 

shall  be  adjudged  to  be  owing  and  due  to  the  said  plaintiff  in  the  determina- 
tion of  said  suit,  together  with  all  costs  accruing,  then  this  obligation  to  be 
void,  otherwise  to  remain  in  full  force. 

{Signatures^    {Seals.) 
Approved,  {Sheriff  or  Constable.) 


CHAPTER  XXVI. 

MARINE  INSURANCE. 


SECTION  I. 

HOW   THE    CONTRACT    OF    INSURANCE   IS    MADE. 

At  the  present  day  insurance  is  seldom  made  by  individuals. 
Formerly,  this  was  the  universal  custom  in  our  commercial  cities. 

Afterwards,  companies  were  incorporated  for  the  purpose  of 
24 


370  MARINE  INSURANCE. 

making  insurance  on  ships  and  their  cargoes  ;  and  the  manifold 
advantages  of  this  method  have  caused  it  to  supersede  the  other. 
But  an  insurance  company  is  not  bound  to  insure  for  all  who 
offer,  and  it  has  been  held  that  an  action  will  not  lie  against 
insurers  for  combining  not  to  insure  for  a  certain  person,  how- 
ever malicious  their  motive  may  be. 

The  contract  of  insurance  binds  the  insurer  to  indemnify  the 
insured  against  loss  or  injury  to  certain  property  or  interests 
which  it  specifies,  from  certain  perils  which  it  also  specifies. 
The  consideration  for  this  obligation  on  the  part  of  the  insurer 
is  the  premium  paid  to  the  insurer,  or  promised  to  be  paid  to 
him,  by  the  insured. 

The  instrument  in  which  this  contract  is  expressed  is  called 
a  Policy  of  Insurance.  But  no  instrument  is  essential  to  the 
validity  of  the  contract ;  for  if  the  proposals  of  the  insured  are 
written  in  the  usual  way  in  the  proposal  book  of  the  insured, 
and  signed  by  their  ofificer  with  the  word  "done,"  or  "accepted," 
or  in  any  usual  way  to  indicate  that  the  bargain  is  made,  it  is 
valid,  although  no  policy  be  delivered  ;  and  it  would  be  construed 
as  an  insurance  upon  the  terms  expressed  in  the  policy  com- 
monly used  by  that  company. 

If  proposals  are  made,  on  either  side,  by  letter,  and  accepted 
by  the  other  party,  also  by  letter,  this  is  a  valid  contract  of 
insurance  as  soon  as  the  party  accepting  has  mailed  his  letter 
to  that  effect,  if  he  have  not  previously  received  notice  of  a  with- 
drawal of  the  proposals. 

The  form  of  the  policy  is  generally  that  which  has  been  used 
for  many  years  both  in  England  and  in  this  country,  with  such 
changes  and  modifications  only  as  will  make  it  express  more 
accurately  the  bargain  between  the  parties.  And  for  this  pur- 
pose it  may  be  and  is  varied  at  pleasure. 

It  is  subscribed  only  by  the  insurers  ;  but  binds  both  parties. 
The  insured  are  bound  for  the  premium,  although  no  note  is 
given.  The  date  may  be  controlled  by  evidence  showing  when 
it  was  made  and  delivered ;  but  if  delivered  after  its  date,  ii 
takes  effect  at  and  from  its  date,  if  that  were  the  intention  of  th^ 
parties. 

It  may  be  effected  on  application  of  an  agent  of  the  insured. 


HOW  THE  CONTRACT  OF  INSURANCE  IS  MADE.     371 

if  he  have  full  authority  for  this  purpose ;  which  need  not  be  in 
writing.  But  a  mere  general  authority,  even  if  it  related  to 
commercial  matters,  or  to  a  ship  itself,  as  that  of  a  "  ship's  hus 
band,"  is  not  sufficient. 

A  party  may  be  insured  who  is  not  named,  if  "for  whom  it 
may  concern,"  or  words  of  equivalent  import,  are  used.  But  a 
party  who  seeks  to  come  in  under  such  a  clause  must  show  that 
he  was  interested  in  the  property  insured  at  the  time  the  insur 
ance  was  made,  and  that  he  was  in  the  contemplation  of  the 
party  asking  insurance.  The  phrase  "  on  account  of  owners  at 
the  time  of  loss,"  or  an  equivalent  phrase,  will  bring  in  those 
who  were  intended,  if  they  owned  the  property  when  the  loss 
occurred,  although  there  were  assignments  and  transfers  between 
the  time  of  insurance  and  the  loss. 

Each  person  whose  several   interest  is  actually  insured  by 
any  such  general  phrase  may  demand  or  sue  in  his  own  name. 

If  the  nominal   insured  is  described  as  "  agent "  generally, 
this  is  equivalent  to  "for  all  whom   it  may  concern."     And  an 

insurance  "  for "  will  be  read  as  for  all  whom  it  may  coi- 

cern,  if  that  were  intended.  So,  if  the  designation  of  the  insured 
be  common  to  many  persons,  the  intention  of  the  parties  must 
decide  for  whom  it  is  made.  Whatever  is  written  on  any  part 
of  the  sheet  containing  the  policy,  or  even  on  a  separate  paper, 
if  referred  to  or  signed  by  the  parties  as  a  part  of  the  policy,  is 
thereby  made  a  part  of  it. 

But  things  said  by  either  party  while  making  their  bargain, 
or  written  on  other  paper,  and  not  so  referred  to  or  signed,  form 
no  part  of  it.  The  policy  may  expressly  j:rovide  that  its  terms 
shall  be  made  definite,  especially  as  to  the  property  insured,  by 
subsequent  indorsements  or  additions.  Thus,  it  is  very  common 
to  insure  property  to  a  certain  amount,  "from  A  to  B,  on  board 
ship  or  ships,  as  shall  hereafter  be  indorsed  on  this  policy. 
And  when  this  or  any  equivalent  phrase  is  used,  the  insure 
requests  the  insurers  to  indorse  on  the  policy  the  name  of  the 
vessel,  and  the  amount  shipped,  as  soon  as  he  has  notice  of  it. 

Alterations  may  be  made  at  any  time  by  consent.  But  a 
material  alteration  by  either  party,  without  the  consent  of  the 
other,  renders  the  contract  void ;  although  it  was  made  honestly. 


372 


MARINE  INSURANCE. 


in  the  hope  or  belief  of  its  being  assented  to.  A  court  of  equit}^ 
will  correct  a  material  mistake  of  fact. 

A  policy  may  be  assigned,  and  the  assignee  may  sue  in  the 
name  of  the  assignor.  If  the  loss  is  made  by  the  policy  payable 
"to  order"  or  "to  bearer,"  it  will  then  by  negotiable  by  indorse- 
ment or  delivery,  but  it  is  not  certain  that  the  transferee  can 
even  then  sue  in  his  own  name.  In  New  York  and  some  other 
States,  not  only  these  assignees,  but  other  assignees  of  debts  of 
contracts,  may  sue  in  their  own  names. 

If  the  insured  transfers  the  property,  unaccompanied  by  a 
transfer  of  the  policy  with  consent  of  the  insurer,  this  dis- 
charges the  policy,  unless  it  vvas  expressly  made  for  the  benefit 
of  whoever  should  be  owner  at  the  time  of  the  loss,  as  before 
stated.  There  is  usually  a  clause  to  the  effect  that  the  policy 
is  void  if  assigned  without  the  consent  of  the  insurers.  But  this 
does  not  apply  to  an  assignment  by  force  of  law,  as  in  a  case  of 
insolvency,  or  in  a  case  of  death.  And  after  a  loss  has  occurred, 
the  claim  against  the  insurers  is  always  assignable  like  any  other 
debt.  And  a  seller  who  remains  in  possession  of  the  property 
as  trustee  for  the  purchaser,  or  a  mortgagor  retaining  possession, 
may  retain  the  policy,  and  preserve  his  rights. 

SECTION   II. 

THE  INTEREST  OF  THE  INSURED. 

The  Contract  of  Insurance  is  a  contract  of  indemnity  for 
loss.  The  insured  must,  therefore,  be  interested  in  the  prop 
erty  at  the  time  of  the  loss.  The  value  to  be  paid  for  may 
be  agreed  upon  beforehand,  and  expressed  in  the  policy, 
which  is  then  called  a  vabtcd  policy ;  or  left  to  be  ascer- 
tained by  proper  evidence,  and  the  policy  is  then  called  an 
open  policy. 

This  valuation,  if  in  good  faith,  is  binding  on  both  parties^ 
even  if  it  be  very  high  indeed.  But  a  wager  policy,  that  is, 
one  without  interest,  is  void  ;  and  although  there  be  some 
interest,  the  valuation  may  still  be  so  excessive  as  to  be  open 
to  the  objection  that  the  interest  is  a  mere  cover,  and  that  the 
contract  is  void  because  only  one  of   wager.      The   valuation 


THE  INTEREST  OF  THE  INSURED.  'i>7Z 

js  void  if  fraudulent  in  any  respect  ;  as  if  it  cover  an  illegal 
interest  or  peril.  And  in  this  case  the  fraud  ^  vitiates  and 
avoids  the  whole  contract,  and  the  insured  recovers  nothing. 
And  if  the  valuation  is  gross  and  excessive,  fraud  may  be 
presumed. 

The  insured  may  apply  his  valuation  to  the  whole  property, 
or  to  that  part  of  it  which  he  wishes  to  insure  ;  thus  he  may 
cause  himself  to  be  insured  for  one-half  of  a  cargo,  the  whole 
of  which  is  valued  at  $20,000,  or  for  one-half,  which  half  is 
valued  at  $20,000;  and  if  the  policy  says,  "Insured  $15,000  on 
half  of  the  ship  Scipio  (or  on  her  cargo),  valued  at  $20,000," 
whether  it  is  meant  that  the  Avhole  ship  (or  cargo)  is  valued  at 
$20,000,  or  the  half  only  that  is  insured,  will  be  determined  by 
a  reasonable  construction  of  the  language  used.  If  he  owns  the 
w^hole,  the  valuation,  in  general,  will  be  held  to  apply  to  the 
whole ;  and  only  to  a  part,  if  he  owns  only  a  part. 

He  may  value  one  thing  insured,  and  not  another  ;  or 
may  value  the  same  thing  in  one  policy,  and  not  in  another  ; 
and  then  the  valuation  does  not  affect  the  policy  wdiich  does  not 
contain  it.  If  only  a  part  of  the  goods  included  in  the  valuation 
are  on  board  and  at  risk,  it  applies  to  them  in  due  proportion  to 
their  value. 

A  valuation  of  an  outward  cargo  may  be  taken  as  a  valu- 
ation of  a  return  cargo,  substituted  for  the  other  by  purchase, 
and  covered  by  the  same  policy.  And  a  valuation  will  cover 
the  insured's  whole  interest  in  the  thing  valued,  including 
the  premium,  unless  a  different  purpose  is  expressed  or  indi- 
cated. 

A  valuation  of  freight  applies  to  the  freight  of  the  whole 
cargo,  and  if  a  part  only  be  at  risk,  it  applies  in  proportion. 
And  it  applies  either  to  the  whole  voyage,  or  to  freight  earned 
by  voyages  which  form  parts  of  the  whole,  as  may  be  intended 
and  expressed. 

If  profits  are  insured  as  such,  the}-  are  generally  valued,  but 
may  be  insured  by  an  open  policy.  If  they  are  valued,  the  loss 
of  the  goods  on  which  the  profits  were  to  have  been  made, 
implies  in  this  country  a  loss  of  the  valued  profits,  without  proof 
that  there  would  have  been  any  profit  whatever ;  it  seems  to  be 


374  MARINE  INSURANCE. 

necessary  in  England  to  show  that  there  would  have  been  some 
profit,  and  then  the  valuation  attaches. 

It  is  very  common  to  insure  profits,  in  fact,  without  saying 
anything  about  them,  by  a  valuation  of  the  goods  sufficiently 
high  to  include  all  tlie  profits  that  can  be  made  upon  them. 

In  an  open  policy,  where  the  value  insured  is  to  be  deter- 
mined by  evidence,  the  value  of  the  property — whether  ship 
or  goods — which  is  insured,  is  its  value  when  the  insurance 
took  effect,  including  the  premium  of  insurance ;  as  the  law 
of  insurance  intends  indemnifying  the  assured  as  accurately 
as  may  be  for  all  his  loss.  If  a  ship  be  insured,  its  value 
throughout  the  insurance  is  the  same  as  at  the  beginning,  with- 
out allowance  for  the  effect  of  time  upon  it.  And  all  its 
appurtenances,  in  a  mercantile  sense  of  this  phrase,  enter  into 
its  value. 

While  the  value  of  the  property  does  not  vary  with  time, 
the  interest  of  the  insured  at  the  time  of  the  loss  (which  may 
be  the  whole,  or  half,  or  any  other  part)  is  that  on  which  he 
founds  his  claim.  Thus,  if  an  ovv^ner  of  a  ship  is  insured  $20,000 
on  ship  A.  B.,  valued  at  $30,000,  and  afterwards  sells  half  of  the 
ship,  and  it  is  subsequently  lost,  he  recovers  only  $10,000. 
But  if  he  owned  half  originally,  and  insured  that,  and  before 
the  loss  acquired  the  other  half,  he  recovers  only  for  the  half 
insured. 

Generally,  the  value  of  goods  is  their  invoice  price,  with  all 
those  charges,  commissions,  wages,  etc.,  which  enter  into  the 
cost  to  the  owner  when  the  risk  commences.  The  drawback  is 
not  deducted  ;  and  the  expenses  incurred  after  the  risk  begins, 
as  for  freight,  etc.,  are  not  included.  And  the  rate  of  exchange 
at  the  beginning  of  the  risk  is  taken. 

SECTION  III. 

THE   INTEREST    WHICH    MAY   BE   INSURED. 

A  MERE  possibility  or  expectation  cannot  be  insured,  but 
any  actual  interest  may  be.  If  one  has  contracted  to  buy  goods, 
he  may  insure  them,  and  will  recover  if  the  property  be  in  him 
at  the  time  of  the  loss  ;  for  if  they  are  then  destroyed,  it  will  be 


THE  INTEREST  WHICH  MA  Y  BE  INSURED.  375 

his  loss.      (For  what  is  meant  by  the  property  being  in  him,  see 
the  chapter  on  Sales.) 

If  one  has  taken  on  himself  certain  risks,  or  agreed  to  indem- 
nify another  for  them,  he  may  insure  himself  against  the  same 
risks.  The  policy  may  express  and  define  the  interest  in  such 
a  way  that  any  change  in  the  nature  of  it  will  discharge  the 
insurance.  If  it  is  not  so  defined  and  declared,  a  change,  as 
from  the  interest  of  an  owner  to  that  of  a  mortgagor,  or  of  a 
mortgagee,  will  not  defeat  the  policy. 

A  mere  indebtedness  to  a  party  on  account  of  property  gives 
the  creditor  no  insurable  interest ;  thus,  one  who  repaired  a 
house  or  a  ship  cannot  insure  the  house  or  ship  merely  because 
the  owner  owes  him  ;  but  if  the  creditor  has  a  lien  on  the  prop- 
erty, this  is  an  insurable  interest.  And,  generally,  every  bailee 
or  party  in  possession  of  goods,  with  a  lien  on  them,  may  insure 
them.  And  a  lender  on  bottomry  or  respondentia  may  insure 
the  ship  or  goods.  And  any  persons  who  have  possession  of 
property,  or  a  right  to  possession,  and  may  legally  make  a  profit 
out  of  it,  as  factors  on  commission,  consignees,  or  carriers,  may 
insure  their  interest. 

If  a  mortgagee  be  insured,  and  recovers  from  the  insurers, 
he,  generally,  at  least,  transfers  to  them  the  security  for  his 
debt,  or  accounts  with  them  for  its  value  ;  because,  to  the  extent 
of  that  security,  he  has  met  with  no  loss,  and,  if  he  did  not 
transfer  it,  would  recover  his  money  twice.  It  should,  however, 
be  added  that  where  a  mortgagee,  or  one  having  a  lien,  insures 
his  own  interest  in  property,  a  payment  of  a  loss  to  him  by  the 
insurers  does  not  discharge  the  debt  for  which  the  mortgage  or 
the  lien  is  the  security.  Where,  however,  the  mortgagee  is 
trustee  for  the  mortgagor,  as  where  the  mortgagor  causes  insur- 
ance to  be  made  on  the  premises,  payable  to  the  mortgagee  in 
case  of  loss,  or  where  the  mortgagee  effects  insurance  at  the 
expense  of  the  mortgagor,  with  his  consent,  payment  by  the 
insurers  would  go  in  discharge  of  the  debt. 

A  policy  usually  adds  to  the  description  of  the  property, 
"lost  or  not  lost."  This  phrase  makes  the  policy  retrospective; 
and  attaches  it  to  the  property  if  that  existed  when,  by  the  terms 
of  the  policy,   the    insurance  began,    whether  this  were  for  a 


376  MARINE  INSURANCE. 

voyage  or  for  a  certain  time,  although  it  had  ceased  to  exist 
when  the  policy  was  made. 

An  interest  which  was  originally  valid  and  sufficient  cannot 
be  defeated  by  that  which  threatens,  but  does  not  complete  an 
actual  divestment  of  the  interest  in  property ;  therefore,  not 
by  attachment,  or  an  execution  for  debt ;  nor  by  liability  to 
seizure  by  government  for  forfeiture  ;  nor  a  right  in  the  seller 
to  stop  the  goods  in  transitu ;  nor  capture ;  because,  after  all 
these,  the  property  may  remain  in  or  return  to  the  insured. 
But  sale  on  execution,  actual  seizure  by  government  and  for- 
feiture, stoppage  in  transitu,  or  condemnation  by  court  as 
lawful  prize,  divest  the  property,  and  therefore  discharge  the 
insurance. 

The  insurance  never  attaches  if  the  interest  is  ille;T;al  origi- 
nally ;  and  it  is  discharged  if  the  interest  becomes  illegal 
subsequent  to  the  insurance,  or  if  an  illegal  use  of  the  subject- 
matter  of  the  insurance  is  intended.  And  any  act  is  illegal 
which  is  prohibited  by  law,  or  made  subject  to  a  penalty.  The 
effect  would  be  the  same  if  the  policy  opposes  distinctly  the 
principles  and  the  purposes  of  law,  as  wagering  policies  do. 

Mariners,  or  mates,  are  not  permitted  by  the  law-merchant 
to  insure  their  wages,  but  may  insure  goods  on  board,  bought 
with  their  wages  ;  and  one  legally  interested  in  the  wages  of  a 
mariner  may  insure  them  ;  as  one  to  whom  they  are  assigned  by 
order  or  otherwise.  A  master  may  insure  his  wages,  commis- 
sions, or  any  profit  he  may  make  out  of  his  privilege. 

An  unexecuted  intention  of  illegality,  if  not  distinctly  acted 
upon,  will  not  defeat  a  policy ;  nor  a  remote  and  incidental  ille- 
gality ;  as  smuggling  stores  on  board,  or  not  having  on  board 
the  provisions  required  by  law ;  nor  a  change  from  legality  to 
illegality,  which  cannot  be  proved  or  supposed  to  be  known  to 
the  insured.  And  upon  these  questions,  the  court,  if  the  case 
be  balanced,  will  incline  to  the  side  of  legality.  A  cargo  may 
be  insured  which  is  itself  lawful,  but  was  purchased  with  the 
proceeds  of  an  illegal  voyage. 

If  a  severable  part  of  a  cargo  or  a  voyage  is  legal,  it  may  be 
insured,  by  itself,  although  other  parts  are  illegal.  But  if  a  part 
of  the  whole  property  insured  together  is  illegal,  this  avoids  the 
whole  policy. 


PRIOR  INSURANCE.  7,77 

A  compliance  with  foreign  registry  laws  is  not  necessary,  and 
with  our  own  probably  is  not,  to  sustain  the  insurance  of  an 
actual  owner  in  good  faith 

Freight  is  a  common  subject  of  insurance.  In  common  con- 
versation, this  word  means  sometimes  the  cargo  carried,  and 
sometimes  the  earnings  of  the  ship  by  carrying  the  cargo.  The 
latter  is  the  meaning  in  mercantile  law,  and  especially  in  the  law 
of  insurance.  It  includes  in  insurance  law  the  money  to  be 
paid  to  the  owner  of  a  shij^  by  the  shipper  of  goods,  and  also 
the  earnings  of  an  owner  by  carrying  his  own  goods  ;  and  the 
amount  to  be  paid  to  the  owner  by  the  hirer  of  his  ship,  and 
also  the  profits  of  such  hirer,  either  by  carrying  his  own  goods, 
or  by  carrying,  for  pay,  the  goods  of  others. 

An  interest  in  freight  begins  as  soon  as  the  voyage  is  deter- 
mined upon,  and  the  ship  is  actually  ready  for  sea,  and  goods  are 
on  board,  or  are  ready  to  be  put  on  board,  or  are  promised  to  be 
put  on  board  by  a  contract  which  binds  the  owner  of  the  goods 
to  put  them  on  board,  for  that  voyage. 

If  a  ship  is  insured  on  a  voyage  which  is  to  consist  of  many 
passages,  and  sails  without  cargo,  but  a  cargo  is  ready  for  her, 
or  contracted  for  her  at  the  first  port  she  is  to  reach  and  sail 
from,  the  owner  has  an  insurable  interest  in  the  freight  from  the 
day  on  which  she  sails  from  his  home  port. 

If  one  makes  advances  towards  the  freight  he  is  to  pay,  and 
this  is  to  be  repaid  to  him  by  the  ship-owner  if  the  freight  is 
not  earned,  the  advancer  has  no  insurable  interest  in  what  he 
advances  ;  but  if  he  is  to  lose  it,  without  repayment,  if  the  ship 
be  lost  or  the  freight  not  earned,  he  has  an  insurable  interest. 

SECTION  IV. 

PRIOR    INSURANCE, 

Our  marine  policies  generally  provide  for  this  by  a  clause 
to  the  effect  that  the  insurer  shall  be  liable  only  for  so  much  of 
the  property  as  a  prior  insurance  shall  not  cover.  The  second 
covers  what  the  first  leaves,  the  third  what  the  second  leaves, 
and  so  on  ;  and  as  soon  as  the  whole  value  of  the  property  is 
covered,  the  remainder  of  that  policy,  and  the  subsequent  poli- 


378  MARINE  INSURANCE. 

cies,  have  no  effect.  This  priority  relates  not  merely  to  the 
date  of  the  instrument,  but  to  the  actual  time  of  insurance. 
Sometimes  the  policy  provides  that  the  insured  shall  recover 
only  the  same  proportion  of  the  whole  loss  which  the  amount 
insured  in  that  policy  is  of  the  whole  amount  insured  by  all  the 
policies  on  the  whole  property. 

Where  no  provision  is  made  in  the  policies  as  to  priority,  all 
are  insurers  alike,  but  all  together  only  of  the  whole  value  at 
risk.  The  insured,  therefore,  may  recover  of  any  one  insurer 
at  his  election,  and  this  insurer  may  compel  the  others  to  con- 
tribute to  him  in  proportion  to  their  respective  insurances. 

Insurances  may  be  not  successive,  but  simultaneous,  and 
then  no  clause  as  to  prior  policies  has  any  application,  for  then 
no  policy  is  prior  to  another,  and  all  the  insurances  are  liable 
pro  rata.  They  are  simultaneous,  if  said  to  be  so  in  the  policies, 
which  is  common  ;  or  if  made  on  the  same  day,  and  bearing  the- 
same  date,  and  there  is  no  evidence  as  to  which  was,  in  fact, 
first  made. 

SECTION  V. 

DOUBLiE    INSURANCE   AND    RE-INSURANCE. 

If  there  be  double  insurance,  either  simultaneously  or  by 
successive  policies  in  which  priority  of  insurance  is  not  pro- 
vided for,  we  have  seen  that  all  are  insurers,  and  liable  each  in 
proportion  ;  thus,  if  all  the  policies  cover  twice  the  value  of  the 
property  insured,  each  policy  is  valid  for  one-half  of  its  own 
amount. 

But  there  is  no  double  insurance,  unless  all  the  policies  insure 
the  very  same  subject-matter,  against  the  same  risks,  and,  taken 
together,  exceed  its  whole  value. 

Many  insurances  of  the  same  subject-matter,  for  the  benefit 
of  different  parties,  do  not  constitute  double  insurance. 

Re-insurance  is  lawful ;  for  whoever  insures  another  has 
assumed  a  risk  against  which  he  may  cause  himself  to  be 
insured.  This  is  often  done  by  companies  who  wish  to  close 
their  accounts,  to  lessen  their  risks,  or  get  rid  of  some  special 
risk. 


EXPRESS  IVARRAiXTIES.  37^ 

SECTION  VI. 

THE   MEMORANDUM. 

This  word  is  retained,  because  the  English  policies  hava 
attached  to  them  a  note  or  memorandum  providing  that  the 
insurers  shall  not  be  liable  for  any  loss  upon  certain  articles 
therein  enumerated  (and  thence  called  memorandum  articles), 
unless  it  be  total,  or  greater  than  a  certain  percentage.  In  our 
policies,  the  same  thing  is  provided  for,  but  usually  by  a  clause 
contained  in  the  body  or  in  the  margin  of  the  policy.  The  gen- 
eral purpose  is  to  guard  against  a  liability  for  injuries  which  may 
very  probably  not  arise  from  maritime  peril,  because  the  articles 
are  in  themselves  perishable  ;  but  which  injuries  it  might  not 
be  easy  to  refer  to  the  precise  causes  which  produced  them 
Thus,  grain,  fish,  hides,  fruit,  etc.,  are  very  liable  to  be  some- 
what injured  on  the  voyage,  and  if  there  has  been  bad  weather, 
or  a  greater  leak  than  usual,  it  is  impossible  to  say  whether  these 
goods  have  lost  value  from  their  own  decay,  or  from  a  peril  of 
the  sea.  It  is  therefore  provided,  that  the  insurers  shall  not 
pay  unless  there  be  a  total  loss  by  a  sea-peril,  which  ends  all 
question,  or  so  large  a  loss  as  ten  or  twenty  per  cent.;  for  this 
could  hardly  happen  without  visible  and  certain  cause.  And 
then,  if  the  cause  was  shown  to  be  not  a  peril  insured  against, 
the  insurers  would  not  be  liable. 

The  perishable  articles  thus  excepted,  and  the  percentage  of 
loss  necessary  to  charge  the  insurers,  vary  very  much  at  differ- 
ent times  and  in  different  States. 

SECTION  VII. 

EXPRESS    WARRANTIES. 

A  STIPULATION  or  agreement  in  the  policy,  that  a  certain 
thing  shall  be  or  shall  not  be,  is  an  express  warranty.  And 
every  warranty  must  be,  if  not  strictly,  at  least  accurately  com- 
plied with.  Nor  is  it  an  excuse  that  the  thing  is  not  mate- 
rial ;  or  that  the  breach  was  not  intended,  or  not  known ;  or  that 
it  was  caused  by  an  agent  of  the  insured.  A  warranty  is 
equally  effectual  if  written  upon  a  separate  paper,  but  referred 


38o  MARINE  INSURANCE. 

to  in  the  policy  itself  as  a  warranty.  And  the  direct  assertion 
or  allegation  of  a  fact  may  constitute  a  warranty. 

If  the  breach  of  the  warranty  exists  at  the  commencement 
of  the  risk,  it  avoids  the  whole  policy,  although  the  warranty 
was  complied  with  afterwards  and  before  a  loss,  and  although 
all  other  risks  were  distinct  from  that  to  which  the  warranty 
related.  Thus,  if  a  vessel  is  warranted  "  coppered,"  and  she  is 
not  coppered,  and  is  lost  by  the  ignition  of  cotton  in  the  hold. 
Here,  the  breach  of  the  warranty,  that  is,  the  want  of  the  cop- 
per, has  nothing  to  do  with  the  loss ;  but  the  insurers  would  be 
discharged. 

If  the  breach  occur  after  the  risk  begins,  and  before  a  loss, 
and  is  not  caused  or  continued  by  the  fault  of  the  insured,  the 
insurers  are  held  ;  and  so  they  are  if  a  compliance  with  the  war- 
ranty becomes  illegal  after  the  policy  attaches,  and  it  is  therefore 
broken. 

The  usual  subjects  of  express  warranty  are,  first,  the  owner- 
ship of  the  property,  which  is  chiefly  important  as  it  secures 
the  neutrality,  or  freedom  from  war-risks,  of  the  property 
insured.  The  neutrality  of  the  ship  and  of  the  cargo  must  be 
proved  by  the  ship's  having  on  board  all  the  usual  and  regular 
documents.  False  papers  may,  however,  be  carried  for  com- 
mercial purposes,  either  when  leave  is  given  by  the  insurers,  or 
when  it  is  permitted  by  a  known  and  established  usage. 

If  neutrality  is  warranted,  it  must  be  maintained  by  a  strict 
adherence  to  all  the  rules  and  usages  of  a  neutral  trade  or  em- 
ployment. Without  warranty,  every  neutral  ship  is  bound  to 
respect  a  blockade  which  legally  exists  by  reason  of  the  presence 
of  an  armed  force  sufihcient  to  preserve  it,  and  of  which  the 
neutral  has  knowledge. 

The  second  most  common  express  warranty  is  that  of  the 
time  of  the  ship's  sailing.  She  sails  when  she  weighs  anchor 
or  casts  off  her  fastenings,  and  gets  under  way,  if  the  intention 
be  to  proceed  at  once  to  sea  without  further  delay.  She  must 
have  been  actually  under  way.  But  if  she  moves  with  the 
intention  of  prosecuting  her  voyage,  this  is  sufficient.  But  if 
not  entirely  ready  for  sea,  she  has  not  sailed  by  merely  moving 
down  the  harbor.     If  she  moves,  being  ready  and  intended  for 


IMPLIED  WARRANTIES.  3S1 

sea,  but  is  afterwards  accidentally  and  compulsorily  delayed, 
this  is  a  sailing.  Nor  is  the  warranty  complied  with  by  leaving 
a  place  to  return  to  it  immediately ;  or  by  going  from  one  port 
of  the  coast  or  island,  which  she  is  warranted  to  leave,  to 
another.  If  the  ship  is  warranted  "in  such  a  harbor  or  port," 
or  "where  the  ship  now  is,"  this  means  at  the  time  of  the 
insurance.  And  "warranted  in  port"  means  the  port  of 
insurance,  unless  another  port  is  expressed  or  distinctly  indica- 
ted. 

SECTION  VIII. 

IMPLIED    WARRANTIES. 

The  most  important  of  these  warranties — which  the  law 
implies,  or  makes  for  the  parties  without  their  saying  anything 
about  them,  although  they  may,  if  they  please,  make  them  for 
themselves — is  that  of  scazuorthiness.  By  this  is  meant,  that 
every  person  who  asks  to  be  insured  upon  his  ship,  by  the  mere 
force  and  operation  of  law,  warrants  that  she  is,  in  every 
respect, — hull,  sails,  rigging,  officers,  crew,  provisions,  imple- 
ments, papers,  and  the  like, — competent  to  enter  upon  and 
prosecute  that  voyage  at  the  time  proposed,  and  encounter 
safely  the  common  dangers  of  the  sea.  If  this  warranty  be  not 
complied  with,  the  policy  does  not  attach,  whether  the  breach 
^e  known  or  not,  unless  there  is  some  peculiar  clause  in  the 
policy  waiving  this  objection. 

If  the  ship  be  seaworthy  and  the  policy  attaches,  no  subse- 
quent breach  discharges  the  insurers  from  their  liability  for  a 
loss  previous  to  the  breach.  Even  if  the  policy  does  not  attach 
at  the  beginning  of  the  voyage,  if  the  unseaworthiness  be 
capable  of  prompt  and  effectual  remedy,  and  be  soon  and 
entirely  remedied,  the  policy  may  then  attach.  If  the  insurance 
is  "at  and  from"  a  port,  there  is  no  implied  warranty  in  the 
nature  of  a  condition  precedent  to  the  attaching  of  the  policy, 
that  the  vessel  shall  be  then  seaworthy  in  the  sense  of  being  fit 
for  sea,  and  it  is  sufficient  if  she  is  portworthy.  But  the  policy 
is  avoided  if  she  goes  to  sea  in  an  unseaworthy  condition.  The 
general  rule  is,  that,  if  unseaworthiness  prevents  the  policy 
from  attaching  at  the  proper  commencement  of  the  risk,  the 
contract  becomes  a  nullity. 


382 


MARINE  INSURANCE. 


If  she  becomes  unseaworthy  in  the  course  of  the  voyage, 
from  a  peril  insufficient  to  produce  it  in  a  sound  vessel,  this  may 
be  evidence  of  inherent  weakness  and  original  unseaworthiness; 
and  then  the  policy  never  attached.  But  if  originally  seaworthy, 
and  by  any  accident  made  otherwise,  the  policy  continues  to 
attach  until  she  can  be  restored  to  a  seaworthy  condition  by 
reasonable  endeavors.  And  the  general  rule  is,  that  she  must 
be  so  restored  as  soon  as  she  can  be.  It  is  the  duty  of  the  master 
to  repair  her  as  soon  as  he  can ;  by  the  aid  of  another  ship  if 
that  may  be,  but  if  otherwise,  not  to  keep  her  at  sea  if  she  can 
readily  make  a  port  where  she  can  be  made  seaworthy  ;  and  not 
to  leave  that  port  until  she  is  seaworthy.  It  is  the  rule  that  a 
ship  must  not  leave  a  port  in  an  unseaworthy  condition,  if  she 
could  there  be  made  seaworthy  ;  if  she  does,  the  irisurers  are  no 
longer  held.  But  their  liability  may  be,  not  destroyed,  but  only 
suspended,  if  the  seaworthiness  be  cured  at  the  next  port, 
especially  if  that  be  not  a  distant  port. 

There  cannot  possibly  be  a  definite  and  universal  standard 
for  seaworthiness.  The  ship  must  be  fit  for  her  voyage  or  for 
her  place.  But  a  coasting  schooner  needs  one  kind  of  fitness, 
a  freighting  ship  to  Europe  another,  a  whaling  ship  another,  a 
ship  insured  only  while  in  port  another.  So  as  to  the  crew,  or 
provisions,  or  papers,  or  a  pilot,  or  certain  furniture,  as  a 
chronometer  or  the  like ;  or  the  kind  of  rigging  or  sails.  In 
all  these  respects,  much  depends  upon  the  existing  and  estab- 
lished usage.  There  is,  perhaps,  no  better  test  than  this ;  the 
ship  must  have  all  those  things,  and  in  such  quantity  and  of 
such  quality  as  the  law  requires,  provided  there  is  any  positive 
rule  of  law  affecting  them  ;  and  otherv.'ise  such  as  would  be 
deemed  requisite  according  to  the  common  consent  and  usage 
of  persons  engaged  in  that  trade.  And  the  reason  for  this  rule 
is,  that  this  is  exactly  what  the  insurers  have  a  right  to  expect, 
and  if  the  insured  intend  anything  less,  or  the  insurers  desire 
anything  more,  it  should  be  the  subject  of  special  bargain. 

If  a  policy  be  intended  to  attach  when  a  ship  is  at  sea,  the 
ship  must  be  seaworthy  in  that  sense  and  in  that  way  in  which 
a  ship  of  her  declared  age,  size,  employment,  and  character, 
after  being  at  sea  for  that  time,  under  ordinary  circumstances, 


REPRESENTA  TION  AND  CONCEALMENT. 


3S3 


ought  to  be  in,  and  may  be  expected  to  be  in  by  all  concerned. 
The  standard  of  seaworthiness  is  to  be  found  from  the  usage 
and  understanding  of  merchants,  at  the  place  where  the  ship 
belongs,  and  not  at  that  where  the  ship  is  insured. 

SECTION  IX. 

REPRESENTATION     AND   CONCEALMENT. 

If  there  be  an  affirmation  or  denial  of  any  fact,  or  an  allega- 
tion which  would  lead  the  mind  to  a  conclusion,  whether  made 
orally  or  in  writing,  or  by  exhibition  of  any  written  or  printed 
paper,  or  by  a  mere  inference  from  the  words  of  the  policy, 
before  the  making  of  the  policy,  or  at  the  making,  and  the  same 
be  false,  and  tend  to  procure  for  him  who  makes  it  the  bargain, 
or  some  advantage  in  the  bargain,  it  is  a  misrepresentation. 
And  it  is  the  same  thing,  whether  it  refers  to  a  subject  concern- 
ing which  some  representations  were  necessary,  or  otherwise. 

Concealment  is  the  suppression  of  a  fact  not  known  to  the 
other  party,  referring  to  the  pending  bargain,  and  material 
thereto. 

A  misrepresentation  or  a  concealment  discharges  the  iru 
surers.  To  have  this  effect,  it  must  continue  until  the  risk 
begins,  and  then  be  material. 

It  is  no  defence  that  it  was  innocent,  and  arose  from  inad- 
vertence or  misapprehension,  because  the  legal  obligation  of  a 
full  and  true  statement  is  absolute ;  nor  that  the  insurers  were 
not  influenced  by  it,  if  it  were  wilfully  made  with  intention  to 
deceive. 

If  it  be  in  its  nature  temporar}^,  and  begins  after  the  risk 
begins,  and  ends  before  a  loss  happens,  the  insurers  are  not 
discharged.  And  if  it  relate  to  an  entirely  separate  subject- 
matter  of  insurance,  as  the  goods  only,  and  has  no  effect  upoa 
the  risk  as  to  the  rest,  as  the  ship,  for  example,  it  discharge 
the  insurers  only  as  to  that  part.  Ignorance  is  never  an  excuse, 
if  it  be  wilful  and  intentional.  If  one  says  only  he  believes  so 
and  so,  the  fact  of  his  belief  in  good  faith  is  sufficient  for  him. 
But  if  he  says  that  is  true  of  which  he  does  not  know  whether 
it  be  true  or  false,  and  it  is  actually  false,  it  is  the  same  misrep- 


334  MARINE  INSURANCE. 

resentation  as  if  he  knew  it  to  be  false.     If  a  statement  relate 
to  the  future,  a  future  compliance  or  fulfilment  is  necessary. 

Any  statement  in  reply  to  a  distinct  inquiry  will  be  deemed 
material ;  because  the  question  implies  that  the  insurer  deems 
it  material.  On  the  other  hand,  the  insured  is  not  bound  to 
communicate  any  mere  expectation  or  hope  or  fear ;  but  only 
all  the  facts  material  to  the  risk. 

SECTION  X. 

WHAT   THINGS    SHOULD    BE   COMMUNICATED. 

Not  only  ascertained  facts  should  be  stated  by  the  insured, 
but  intelligence,  and  mere  rumors,  if  of  importance  to  the  risk ; 
and  it  has  been  held  that  intelligence  known  to  his  clerks  would 
be  generally  presumed  to  be  known  to  him  ;  and  it  is  no  defence, 
that  the  things  have  been  found  to  be  false.  It  has  been  held 
that  an  agent  was  bound  to  state  that  his  directions  were  sent 
him  by  express ;  because  this  indicated  an  emergency.  If  the 
voyage  proposed  would  violate  a  foreign  law  not  generally 
known,  this  should  be  stated. 

It  is  impossible  to  give  any  other  criterion  to  determine 
what  should  be  communicated  than  the  rule  that  everything 
should  be  stated  which  might  reasonably  be  considered  in 
estimating  the  risk.  And  so  everything  of  any  kind  which  the 
insurer  might  reasonably  wish  to  take  into  consideration  in 
estimating  the  value  of  the  risk  which  he  is  invited  to  assume. 

The  question,  however,  being  one  of  concealment  as  it 
affects  the  estimation  of  the  risk,  it  is  obvious  that  the  insured 
need  not  state  to  the  insurer  things  which  he  already  knows ; 
and  by  the  same  reason,  he  is  not  bound  to  state  things  which 
the  insurer  ought  to  know,  and  might  be  supposed  to  know. 

If  either  party  says  to  the  other  so  much  as  should  put  the 
other  upon  inquiry  in  reference  to  a  matter  about  which  inquiry 
is  easy  and  would  lead  to  information,  and  the  other  party 
makes  no  inquiry,  his  ignorance  is  his  own  fault,  and  he  must 
bear  the  consequences  of  it. 

An  intention,  which,  if  carried  into  effect,  would  discharge 
the  insurers,  as,  for  example,  an  intention  to  deviate,  need  not 


THE  PREMIUM.  33^ 

be  stated,  unless  the  intention  itself  can  be  shown  to  affect  the 
risk.  So  a  past  damage  to  the  property  need  not  be  stated, 
unless  it  affects  its  present  probability  of  safety. 

A  false  statement  that  other  insurers  have  taken  the  risk  on 
such  or  such  terms  is  a  misrepresentation  ;  but  a  false  state- 
ment by  the  insured  that  he  thinks  they  would  take  it  on  such 
terms  is  not  one,  for  of  this  the  insurers  can  judge  for  them- 
selves. 

Every  statement  or  representation  will  be  construed  ration- 
ally, and  so  as  to  include  all  just  and  reasonable  inferences.  A 
substantial  compliance  with  it  will  be  sufficient  ;  and  a  literal 
compliance  which  is  not  a  substantial  one  will  not  be  sufficient 

SECTION  XI. 

THE   PREMIUM. 

This  is  undoubtedly  due  when  the  contract  of  insurance  is 
completed ;  but  in  practice  in  this  country,  the  premium  in 
marine  insurance  is  usually  paid  by  a  premium  note  on  time, 
which  is  given  at  or  soon  after  the  delivery  of  the  policy.  If 
the  policy  acknowledge  the  receipt  of  the  premium,  and  it  is 
not  paid,  this  receipt  would  be  no  bar  to  an  action  for  it. 

The  premium  is  not  due,  if  the  risk  is  not  incurred ;  whethei 
this  be  caused  by  the  non-sailing  of  the  ship;  or  by  one  insurei;1 
on  goods  not  having  goods  on  board  ;  or  not  so  much  cargo  av, 
he  is  insured  for;  or  by  any  error  or  falsity  in  the  description 
which  prevents  the  policy  from  attaching. 

If  the  premium  be  not  earned,  or  not  wholly  earned,  it  must 
be  returned  in  whole  or  in  part  by  the  insurers  if  it  have  been 
paid  ;  and  not  charged  in  account  with  the  insured,  if  it  be 
unpaid. 

The  premium  may  be  partially  earned  ;  and  then  there  must 
be  a  part  return  only.  As  if  the  voyage  consist  of  several 
passages,  or  of  "out  and  home"  passages,  and  these  are  not 
connected  by  the  policy  as  one  entire  risk;  or  if  the  insured 
has  some  goods  at  risk,  but  not  all  which  he  intended  to  insure. 

It  is,   however,  an   invariable  rule,  that  if  the  whole  risk 

attaches  at  all,  that  is,  if  there  be  a  time,  however  short,  during 
25 


385  MARINE  INSURANCE. 

which  the  insurers  might,  in  case  of  loss  from  a  sea-peril,  be 
called  on  for  the  whole  amount  they  insure,  there  is  to  be  no 
return  of  premium. 

In  this  country,  insurers  usually  retain  one-half  of  one  per 
cent,  of  a  returnable  policy.  And  our  policies  contain  a  clause 
permitting  the  insurers  to  set  off  the  premium  due  against  a 
loss,  whether  the  note  be  signed  by  the  insured  or  by  another 
person. 

SECTION  XII. 

THE   DESCRIPTION   OF    THE    PROPERTY   INSURED. 

The  description  must  be  such  as  will  distinctly  identify  the 
property  insured,  as  by  quantity,  marks,  and  numbers,  or  a 
reference  to  the  fact  of  shipment,  or  the  time  of  shipment,  or 
the  voyage,  or  the  consignee  ;  or  in  some  similar  and  satisfactory 
vjz-y ;  and  no  mere  mistake  in  a  name,  or  otherwise,  vitiates  the 
v'iescription  if  it  leaves  it  sufificiently  certain.  If  different  ship- 
ments come  within  the  policy,  the  insured  may  attach  it  to 
cither  by  his  declaration,  which  may  be  done  after  the  loss,  pro- 
'dded  this  appears  to  have  been  the  intention  of  the  parties, 
*' Cargo,"  "goods  on  board,"  "  merchandise,"  mean  much  the 
u;ame  thing ;  and  do  not  attach  to  ornaments,  clothing,  or  the 
like,  owned  by  persons  on  board  and  not  intended  for  commer- 
cial purposes.  "  Property  "  is  the  word  of  widest  and  almost 
unlimited  meaning.  "Ship"  or  "vessel"  includes  all  that 
belongs  to  it  at  the  time, — even  sextants  or  chronometers 
belonging  to  the  ship-owner,  and  by  him  appropriated  to  the 
navigation  of  the  ship.  So  it  includes  all  additions  or  repairs 
made  during  the  insurance. 

The  phrase  "  a  return  cargo  "  will  generally  apply  to  a  home- 
ward cargo  of  the  party  insured  in  the  same  ship,  however  it  be 
procured;  but  the  phrases  "proceeds"  and  "returns"  are 
generally  regarded  as  limited  to  a  return  cargo  bought  by  means 
of  the  outward  cargo.  And  neither  of  these,  or  any  similar 
phrases,  will  apply  to  the  same  cargo  brought  back  again,  unless 
it  can  be  shown,  by  the  usage,  or  other  admissible  evidence, 
that  this  was  the  intention  of  the  parties. 

The  nature  of  the  interest   of   the   insured   need   not   be 


THE  PERILS  COVERED  BY  THE  POLICY.  3S7 

specified,  unless  peculiar  circumstances,  closely  connecting  this 
interest  with  the  risk,  make  this  necessary.  But  either  a  mort- 
gagor or  a  mortgagee,  a  charterer,  an  assignee,  a  consignee,  a 
trustee,  or  a  carrier,  may  insure  as  on  his  own  property,  and 
without  describing  the  exact  nature  of  his  interest. 

SECTION  XIII. 

THE   PERILS    COVERED    BV    THE   POLICY. 

The  policy  enumerates,  as  the  causes  of  loss  against  which 
it  insures,  Perils  of  the  Sea,  Fire,  Piracy,  Theft,  Barratr}', 
Capture,  Arrests,  and  Detentions;  and  "all  other  perils,"  by 
which  is  meant,  by  construction  of  law,  all  other  perils  of  a 
like  kind  with  those  enumerated. 

It  is  a  universal  rule,  that  the  insurers  are  liable  only  for 
extraordinary  risks.  The  very  meaning  of  "seaworthiness,** 
which  the  insured  warrants,  is  that  the  ship  is  competent  to 
encounter  with  safety  all  ordinary  perils.  If  she  be  lost  or 
injured,  and  the  loss  evidently  arose  from  an  ordinary  peril,  as 
from  common  weather,  or  the  common  force  of  the  waves,  the 
insurers  are  not  liable,  because  the  ship  should  be  able  to  with- 
stand these  assaults.  And  if  the  loss  be  unexplained,  and  no 
extraordinary  peril  be  shown  or  indicated,  this  fact  would  raise 
a  very  strong  presumption  of  unseaworthiness.  As,  for 
example,  if  the  vessel  went  down  while  sailing  with  favorable 
winds  on  a  calm  ocean. 

It  is  a  universal  rule,  that  the  insurers  are  never  liable  for  a 
loss  which  is  caused  by  the  quality  of  the  thing  lost.  This  rule 
applies  to  the  ship,  her  rigging  and  appurtenances,  when  worn 
out  by  age  or  hard  service.  But  its  most  frequent  application 
is  to  perishable  goods.  The  memorandum  already  spoken  of 
provides  for  this  in  some  degree.  But  the  insurers  are  liable 
for  the  loss  of  no  article  of  merchandise  whatever,  if  that  lo;  s 
were  caused  by  the  inherent  qualities  or  tendencies  of  the 
article,  sinless  these  qualities  or  tendencies  were  excited  to 
action  and  made  destructive  by  a  peril  insured  against.  Thus, 
if  hemp  rots  from  spontaneous  fermentation,  which  cannot 
occur  if  it  be  dry,  the  insurers  are  not  liable  if  the  loss  arose 


388  MARINE  INSURANCE. 

from  the  dampness  which  the  hemp  had  when  laden  on  board  ; 
but  if  the  vessel  were  strained  by  tempest,  and  her  seams 
opened,  and  the  hemp  was  in  this  way  wet,  and  then  rotted, 
they  are  liable. 

The  insurers  may  take  upon  themselves  whatever  risks  they 
choose  to  assume.  And  express  clauses  in  a  policy,  or  the 
uniform  and  established  usage  and  construction  of  policies, 
may  throw  upon  them,  as  in  fact  it  does,  a  very  large  liability 
to  the  owner  or  shipper  for  the  effects  of  the  misconduct — 
wilful  or  otherwise — of  the  master  and  crew.  The  clause 
relating  to  barratry,  to  be  spoken  of  presently,  is  of  this  kind. 

If  the  cargo  is  damaged  through  the  fault  of  the  master  or 
crew,  the  shipper  of  the  cargo  has  a  remedy  against  the  owner 
of  the  ship.  But  this  does  not  necessarily  discharge  the  insur- 
ers. If,  however,  he  enforces  his  claim  against  them,  he  is. 
bound  to  transfer  to  them  his  claim  against  the  ship-owner. 
For  the  insurers  of  the  cargo,  by  paying  a  loss  thereon,  put 
themselves,  as  it  were,  in  the  position  of  the  shippers,  and 
acquire  their  rights. 

SECTION  XIV. 

PERILS    OF   THE    SEA. 

By  this  phrase  is  meant  all  the  perils  incident  to  navigation ; 
and  especially  those  arising  from  the  wind  and  weather,  the  state 
of  the  ocean,  and  its  rocks  and  shores.  But  it  will  be  remem- 
bered that  the  insurers  take  upon  themselves  only  so  many  cf 
these  as  are  "extraordinary."  Hence,  destruction  by  worms  or 
by  rats  is  not  such  a  peril  as  the  insurers  are  liable  for,  because  it 
is  not  extraordinary.  It  seems  now  settled  that  fire  is  not  in- 
cluded among  "perils  of  the  sea,"  or  "perils  of  the  river." 
But  it  is  usually  mentioned  in  the  policy,  as  one  of  the  risks 
insured  against. 

If  a  vessel  be  not  heard  from,  it  will  be  supposed,  after  a 
reasonable  interval,  that  she  has  perished ;  but  the  law  has  not 
determined  the  length  of  this  interval  with  any  exactness.  The 
presumption  of  law  will  be,  that  she  was  lost  by  an  extraordinary 
peril  of  the  sea,  and,  of  course,  the  insurers  will  be  answerable 
for  her.     But  this  presumption  may  be  rebutted  by  any  suffi- 


PIRACY,  ROBBERY,  OR  THEFT.  3 89 

cient  evidence,  as  of  unseaworthiness,  or  any  other  probable 
cause  of  loss. 

SECTION  XV. 

COLLISION. 

CoLLisiox  is  a  peril  of  the  sea  which  may  deserve  especial 
notice.  In  the  chapter  on  Shipping,  it  has  been  stated,  that, 
where  a  collision  is  caused  by  the  fault  of  one  of  the  ships,  the 
ship  in  fault  sustains  the  whole  loss  ;  that  is,  it  must  bear  its 
own  loss,  and  must  indemnify  the  other  ship  for  the  injury  that 
ship  sustains.  It  has  been  held  that  the  insurers  of  the  ship  in 
fault  are  liable  for  the  whole  of  this  loss,  because  it  is  all  caused 
by  collision,  which  is  a  peril  of  the  sea.  But  the  Supreme  Court 
of  the  United  States  have  recently  decided  that  the  insurers  are 
not  held  for  more  than  the  loss  directly  sustained  by  the  ship 
\  hey  insure,  that  is,  not  for  the  amount  that  ship  pays  to  the 
other  ship  for  injury  done  to  it. 

SECTION  XVI. 

FIRE. 

This  peril  also  must  come  under  the  common  rule,  that  the 
insurers  will  not  be  held  unless  it  be  caused  by  something 
extraordinary,  and  not  belonging  to  the  inherent  qualities  of  the 
thing  which  takes  fire. 

The  insurers  would  be  held  for  any  direct  and  immediate 
consequences  of  the  fire  ;  and  for  loss  caused  by  the  endeavor  to 
extinguish  it.  It  is,  indeed,  a  general  rule,  that  the  insurers  are 
liable  for  the  loss  or  injury  which  is  the  natural,  direct,  and 
proximate  effect  of  any  peril  insured  against,  although  the  loss 
itself  may  be  only  the  effect  of  a  preceding  loss  ;  as,  if  a  part  of 
the  cargo  was  burned  up,  and  another  part  was  injured  by  water 
used  to  arrest  the  fire,  the  insurers  would  be  liable  for  both  parts. 

SECTION  XVII. 

PIRACY,    ROBBERY,    OR    THEFT. 

There  can  be  no  piracy  or  robbery,  without  violence ;  but 
this  is  not  necessary  to  constitute  the  crime  of  theft.  Piracy 
and  robbery  are  most  usually  committed  by  strangers  to  the 


390 


MARINE  INSURANCE. 


ship ;  they  may,  however,  be  committed  by  the  crew  ;  and  the 
insurers  are  answerable  for  such  a  loss,  unless  it  arose  from  the 
fault  of  the  owner.  Our  policies  now  usually  have  the  phrase 
"assailing  thieves."  This  excludes  theft  without  violence,  and 
all  theft  by  those  lawfully  on  board  the  vessel,  as  a  part  of  the 
ship's  company.  If,  after  shipwreck,  the  property  is  stolen,  the 
insurers  are  liable,  and  might  be  so  if  there  were  no  insurance 
against  theft,  if  this  was  a  direct  effect  of  the  wrecking. 

SECTION  XVIII. 

BARRATRV. 

This  word  means  any  wrongful  act  of  the  master,  officers,  or 
crew,  as  any  fraud,  cheat,  or  trick  done  by  them,  or  either  of 
them,  aefainst  the  owner.  If  he  directed  the  act,  or  consented 
to  it,  or  by  his  negligence  or  default  caused  it, — whether  he 
were  actual  owner,  or  apparent  or  temporary  owner  by  hiring 
the  vessel, — it  is  no  barratry.  But  it  is  rot  necessary  that  it 
should  be  done  with  an  intention  hostile  to  him.  For  an  act 
otherwise  barratrous  would  be  none  the  less  so  because  the 
committer  of  it  supposed  it  would  be  for  the  advantage  of  the 
owner. 

The  master  being  appointed  by  the  owner,  and  controlled  by 
him,  many  policies  provide  that  they  do  not  insure  against  bai 
ratry,  if  the  insiLved  be  the  ozvncr  of  the  ship.  The  purpose  ci 
this  is  obvious  ;  it  is  to  prevent  an  insurance  of  the  owner  against 
the  acts  of  one  for  whom  the  owner  ought  to  hold  himself 
responsible.  The  effect  of  the  clause  is  to  limit  the  insurance 
against  barratry  to  goods  shipped  by  one  who  is  not  owner  of 
the  vessel. 

As  a  general  rule,  the  insurers  are  liable  for  the  misconduct 
of  the  crew,  when  all  usual  and  reasonable  precautions  have 
been  taken  by  the  owner,  and  his  serv^ant,  the  master,  to  prevent 
such  misconduct. 

SECTION  XIX. 

CAPTURE,   ARREST,   AND   DETENTION. 

The  phrase  which  refers  to  these  perils  is  usually  in  these 
-vords :  "  Against  all  captures  at  sea,  or  arrests,  or  detentions  of  all 


PROHIBITED  TRADE.  391 

kings,  princes,  and  people."  Almost  every  word  of  this  sentence 
has  been  the  subject  of  litigation  or  of  discussion.  The  pro- 
vision has  been  held  to  apply  not  only  to  captures,  arrests,  or 
detentions  by  public  enemies,  by  foreign  belligerent  powers,  but 
to  those  by  the  very  government  of  which  the  insured  is  himself 
a  subject,  iinlcss  the  same  be  for  a  breach  of  the  law  by  the 
insured.  Then  the  insurers  are  not  liable,  because  they  never 
are  for  the  consequence  of  an  illegal  act  of  the  insured.  By  th 
"people"  are  understood  the  sovereign  power  ot  a  State,  what- 
ever be  its  form  of  government.  "  Capture  "  and  '  seizure  "  are 
equivalent;  they  differ  from  "detention"  in  this  respect:  the 
two  former  words  mean  a  taking  with  intent  to  keep  ;  the  latter, 
a  taking  with  intent  to  restore  the  property.  "  Arrest "  is  any 
taking  possession  of  the  property  for  any  hostile  or  judicial 

purpose. 

SECTION  XX. 

THE   GENERAL    CLAUSE. 

This  clause  has  a  very  limited  operation.  We  have  alread  ' 
remarked,  that  it  is  usually  restricted  to  perils  of  a  like  kin.l 
with  those  already  enumerated  ;  and  although  this  phrase  ha? 
been  declared  to  be  substantial  and  material,  it  might  be  difncult 
to  hold  an  insurer  liable  under  this  clause,  when  he  would  not 
have  been  liable  under  some  one  of  the  enumerated  perils. 

SECTION    XXI. 

PROHIBITED    TRADE. 

This  is  not  the  same  with  contraband  trade  (which  belong? 
to  war),  although  the  words  are  sometimes  used  as  if  they  were 
synonymous.  It  is  perfectly  lawful  for  a  ship  to  break  through 
a  blockade  if  it  can,  or  to  carry  arms  or  munitions  of  war  to  a 
belligerent.  This  would  be  contraband  trade.  And  it  is  per 
fectly  lawful  for  the  State  whose  enemy  is  thus  aided,  to  catch 
seize,  and  condemn  the  vessel  that  does  this,  if  it  can.  The 
vessel  takes  upon  itself  this  risk ;  and  it  is  not  covered  by  a 
common  policy,  unless  the  purpose  is  disclosed  and  permitted. 
Prohibited  trade  belongs  to  a  time  of  peace.  It  is  either  trade 
prohibited  by  the  State  to  which  the  ship  belongs, — and  then  it  is 


392 


MARINE  INSURANCE. 


wholly  illegal,  and  the  insurers  are  not  only  not  answerable  under 
a  general  policy  for  a  loss  occasioned  by  this  breach  of  law,  but 
an  express  bargain  to  that  effect  would  itself  be  illegal  and  void  ; 
oi  it  may  be  trade  prohibited  only  by  a  foreign  State.  And  then 
it  is  not  an  illegal  act  in  the  vessel  by  whose  sovereign  it  is  not 
prohibited.  The  intention  to  incur  this  extra  risk  should  be 
communicated  ;  because  the  insurers  should  be  enabled  to  take 
t  into  consideration.  But  in  practice,  our  policies  generally,  if 
not  universally,  except  expressly  the  risks  arising  from  prohib- 
ited trade. 

The  parties  may  always  agree  to  add  such  risks,  or  except 
such,  as  they  choose. 

SECTION  XXII. 

DEVIATION. 

As  the  insurers  are  entitled  to  know,  either  from  information 
given  them,  or  from  the  known  course  of  the  trade,  what  risks 
they  assume,  it  is  obvious  that  the  insured  have  no  right  to 
change  those  risks,  and  that,  if  they  do,  the  insurers  are  not 
lield  to  the  new  risk.  Such  a  change  of  risk  is  called  a  devia- 
tion ;  it  certainly  discharge.";  the  insurers  ;  and  although  the 
word  originally  meant  in  law  what  it  means  commonly,  a  depart- 
ure from  the  proper  course  of  the  voyage,  it  now  means,  in  the 
law  of  insurance,  any  departure  from  or  change  of  the  risks 
msured  against.  And  it  discharges  the  insurers,  although  it 
does  not  increase  the  risk,  as  they  have  a  right  to  stand  by  the 
exact  bargain  they  have  m.ade.  There  may  be  a  deviation  while 
the  ship  is  in  port ;  or  where  the  insurance  is  on  time,  and  no 
voyage  is  indicated.  And  a  very  slight  deviation  may  suffice  to 
discharge  the  underwriters. 

But  no  deviation  discharges  the  insurers,  or,  in  the  language 
of  the  law,  no  change  or  risk  is  a  deviation,  unless  it  be  volun- 
tary, that  is,  not  if  there  was  or  seemed  to  be  a  sufficient  neces- 
sity for  it. 

The  proper  course — a  departure  from  which  is  a  deviation — 
is  always  the  usual  course,  provided  there  be  a  usage  ;  for  a  mas- 
ter is  not  bound  to  follow  their  track  wherever  one  or  two  have 
gone  before,  but  must  be  allowed  his  own  reasonable  discretion. 


DEVIATION.  393 

If  there  be  no  course  so  well  established  that  every  one  would 
be  expected  to  follow  it,  the  master  must  go  to  his  destined 
port  in  the  most  natural,  direct,  safe,  and  advantageous  way. 

An  extraordinary  and  unnecessary  protraction  of  a  voyage 
would  be  a  deviation.  But  the  mere  length  of  the  voyage,  with- 
out other  evidence,  would  not  prove  this. 

Liberty  policies,  so  called,  are  often  made.  That  is,  the 
insured  is  expressly  permitted  to  do  certain  things,  which,  with- 
out such  permission,  would  constitute  a  deviation.  And  a  large 
proportion  of  the  cases  on  the  subject  of  deviation  have  arisen 
under  these  policies.  Most  of  the  phrases  commonly  used  have 
been  construed  by  the  courts  ;  and  generally  quite  strictly.  A 
liberty  to  "  enter"  a  port,  or  "touch  "  at  a  place,  permits  a  ship 
to  go  in  and  come  out,  but  it  permits  little  delay,  because  for 
delay  the  word  "stay"  or  "remain  "  is  necessary. 

It  is  certain  that  no  permission  is  necessary  foi  any  change 
of  course  or  risk  that  is  made  for  the  saving  of  life,  or  even  for 
tlie  purpose  of  helping  the  distressed.  Always  provided,  how- 
ever, that  the  change  of  course,  or  the  delay,  was  no  greater  and 
no  longer  continued  than  this  cause  for  it,  actually  and  ration- 
ally considered,  required.  It  is,  however,  equally  v.-ell  settled, 
that  a  change  of  course  or  of  risk  for  the  purpose  of  saving 
property  is  a  deviation  not  justified  by  its  cause.  A  delay  for 
the  purpose  of  towing  a  vessel  is  certainly  a  deviation,  unless 
there  are  persons  on  board  the  vessel  which  is  towed,  and  they 
can  be  saved  in  no  other  way. 

Sometimes  it  is  intended  that  a  ship  shall  visit  many  ports, 
and  even  go  backwards  and  forwards,  at  places  between  the  port 
from  which  she  sails  and  that  at  which  the  voyage  is  finally  to 
terminate.  Such  purposes  as  this  are  sometimes  provided  for 
by  a  policy  on  time  ;  and  sometimes  by  express  permission  to  go 
to  and  trade  at  certain  ports. 

If  permission  be  given  to  enter  and  stop  at  a  dozen  differ 
ent  ports,  the  vessel  may  omit  any  of  them,  or  the  whole,  but 
must  visit  in  the  proper  order  all  to  -sthich  she  does  go.  She 
cannot  go  back  and  forth. 

The  substitution  of  a  new  voyage  for  that  agreed  upon  is  of 
course  a  deviation,  and  one  that  can  seldom  or  never  be  justi' 


394 


MARINE  INSURANCE. 


fied  by  any  necessity,  so  as  to  carry  the  insurer's  liability  on 
the  new  voyage.  If  an  entirely  new  voyage  is  intended,  and  a 
vessel  sails  upon  it,  but  in  the  same  direction  in  which  she  would 
have  gone  on  the  insured  voyages,  the  policy  never  attaches, 
and  the  premium  is  never  earned,  because  the  ship  never  sails 
on  the  insured  voyage.  But  if  the  ship  is  intended  to  pursue 
the  insured  voyage  to  its  proper  terminus,  but  at  a  certain  point 
of  the  voyage  to  deviate  by  going  into  another  port,  there  is  no 
deviation  until  that  point  is  reached,  and  the  deviation  actually 
begun  ;  because  it  is  certain  that  no  mere  intention  to  deviate 
discharges  the  insurers  until  it  is  carried  into  execution ;  and 
they  are  liable  for  a  loss  happening  before  the  deviation. 

SECTION  XXIII. 

THE   TERMINI   OF   THE    VOYAGE,    AND    OF   THE   RISK. 

These  must  be  distinctly  stated,  whether  they  be  termini  of 

time  or  place.     A  policy  from to ,  or  from  B  to 

,  or  from to  B,  would  be  void.     Nor  would  it  be 

any  better  if  the  termini  were  named  with  apparent  distinctness, 
but  in  such  wise  as  to  mean  nothing,  or  nothing  sufficiently  cer- 
tain. 

A  policy  takes  effect  from  its  date,  if  the  bargain  was  then 
complete,  although  not  delivered  until  afterwards.  And  it  may 
be  remarked,  that,  if  there  be  an  unreasonable  delay  in  the  sail- 
ing of  the  vessel,  the  policy  never  attaches,  for  the  bargain  ;.s 
considered  as  annulled. 

A  policy  on  a  vessel  "  at  "  such  a  place  attaches  when  she 
is  there  in  safety.  But  if  there  were  a  policy  "to"  a  place,  and 
another  was  made  out  between  the  same  parties  "at,"  or  "at 
and  from,"  the  same  place,  the  law  would  presume  that  the  par- 
ties intended  that  the  second  policy  should  attach  whenever  the 
first  one  ceased  by  the  arrival  of  the  ship,  without  reference  to 
the  condition  of  the  ship  or  her  peril  at  the  time. 

A  policy  on  goods  attaches  to  them  at  the  time  when  it 
would  have  attached  to  the  vessel  had  she  been  insured.  The 
extent  which  should  be  given  to  the  meaning  of  the  word  "  port  " 
is  sometimes  a  question  of  some  difficulty  ;  but  in  general  all 


TERMINI  OF  THE  VOYAGE,  AND  OF  THE  RISK.     395 

places  are  within  a  port  which  belong  to  it  by  mercantile  usage 
and  acceptance,  although  not  within  the  same  municipal  or  legal 
precinct. 

"At  and  from  "  covers  a  vessel  in  a  port,  as  well  as  after  she 
leaves  it.  "  From  "  only  covers  the  vessel  after  she  gets  under 
way.  "  At  and  from,"  applied  to  goods,  does  not  cover  them  in 
the  port  when  they  are  on  shore  ajid  warehoused,  nor  until  they 
become  subject  to  marine  risk,  by  being  water-borne.  They  are, 
however,  covered,  not  only  when  they  reach  the  ship,  but  as 
soon  as  they  are  put  on  board  of  boats  or  lighters,  or  any  other 
usual  water  conveyance  to  the  ship.  And  if  insured  to  a  port, 
they  continue  covered  after  they  leave  the  ship  by  any  usual 
conveyance  for  the  shore,  until  they  are  safely  landed.  The 
word  "at,"  applied  to  an  island  or  a  coast,  may  embrace  all  the 
ports  therein,  and  cover  the  ship  while  sailing  from  one  to 
another.  "  To  a  port  and  a  market,"  covers  a  voyage  to  the 
port,  and  thence  to  every  place  to  which,  by  mercantile  usage 
or  reasonable  construction,  a  ship  may  go  thence  in  search  of  a 
market  ;  and  even  to  return  to  that  port,  if  honestly  with  intent 
to  learn  there  where  a  market  could  be  found. 

If  the  insurance  be  to  "a  port  of  discharge,"  this  does  not 
terminate  if  the  vessel  goes  to  a  port  for  inquiry,  or  for  needful 
refreshment  or  repair.  If  it  be  "a  final  port  of  discharge,"  the 
insurance  ceases  upon  such  parts  of  the  cargo  as  are  left  at  one 
port  or  another,  and  continues  on  the  ship,  and  on  all  the  goods 
on  board,  until  arrival  at  the  port  where  they  will  be  finally  diiw 
charged. 

It  is  generally  provided  in  time  policies,  that,  if  the  vessel  be 
at  sea  at  the  expiration  of  the  time  agreed  on,  the  risk  shall  con- 
tinue until  her  arrival  at  a  port  of  discharge,  or  at  her  port  ot 
destination.  If  then,  before  the  expiration  of  the  time,  she  is 
actually  at  sea,  or  has  broken  ground  for  the  voyage,  or  if,  when 
the  time  expires,  she  is  in  a  port  of  necessity  or  restraint,  she  is 
considered  at  sea,  but  not  otherwise. 

The  English  policies  and  our  own  contain  a  provision  that 
the  insurance  continues  on  the  ship  "  until  she  shall  be  arrived 
and  moored  twenty-four  hours  in  safety  ; "  and  on  the  goods 
until  they  be  "landed,"  or  "  safely  landed." 


396  MARINE  INSURANCE. 

Under  this  clause,  the  ship  is  insured  until  moored  in  safety, 
so  far  as  the  perils  insured  against  are  concerned,  but  not 
against  the  peculiar  and  local  dangers  of  the  port,  or  the  possi- 
bility that  a  tempest  there  might  injure  her  when  moored  ;  for 
these  dangers  continue  to  exist  as  long  as  she  stays  there,  and 
the  liability  of  the  insurers  would  never  terminate.  If  she 
enters  the  harbor,  and,  before  she  is  moored,  is  blown  off,  or 
ordered  into  quarantine,  she  is  insured  until  this  delay  ceases 
and  she  is  safely  moored  in  port.  And  if  before  or  within  the 
twenty-four  hours  a  dangerous  storm  begins,  but  does  no  dam- 
age to  her  until  after  the  expiration  of  the  twenty-four  hours, 
the  risk  has  terminated,  and  the  insurers  are  not  liable. 

SECTION  XXIV. 

TOTAL   LOSS   AXD   ABANDONMENT. 

The  law  of  insurance  recognizes  an  actual  total  loss,  and 
also  a  constructive  total  loss.  It  is  actual  when  the  whole  prop- 
erty passes  away,  as  by  submersion  or  destruction  by  fire.  It 
i'j  a  constructive  total  loss  when  the  ship  or  goods  are  partially 
destroyed,  and  the  law  permits  the  insured  to  abandon  the 
salvage  or  whatever  is  saved,  to  the  insurers,  and  claim  from 
them  a  total  loss.  By  "abandonment"  is  meant,  in  insurance 
law,  the  transferring  of  the  property  insured,  or  what  is  left  of 
it,  to  the  insurers.  The  word  is  used,  because  originally  the 
insured  gave  up,  renounced,  or  abandoned  the  property,  saying 
to  the  insurers,  we  will  have  nothing  more  to  do  with  it,  and 
you  may  do  with  it  what  you  like.  And  the  word  is  still  always 
used,  although  now  it  means  a  transfer.  And  in  the  law  of  insur- 
ance, a  constructive  total  loss  is  a  partial  loss  made  total  by  an 
exercise  of  the  right  of  abandonment.  That  is,  the  actual  loss 
took  from  the  insured  a  part,  and  the  abandonment  took  the  rest, 
and  so  they  have  lost  all,  A  constructive  total  loss  is  some- 
times called  a  "technical"  total  loss. 

The  abandonment,  we  say,  transfers  all  that  remains  of  the 
property  to  the  insurers.  If  nothing  remains,  or  if  that  which 
remains  has  no  value,  there  need  be  no  abandonment,  and  this 
•  is  an  actual  total  loss. 


TOTAL  LOSS  AND  ABANDONMENT.  39; 

The  insured  never  need  make  an  abandonment  if  he  chooses 
not  to  do  so.  And  if  from  such  choice  or  neglect  he  makes 
no  abandonment,  his  claim  against  the  insurers  is  still  valid  ; 
but  it  is  a  different  claim  from  that  which  it  would  have  been 
if  he  had  abandoned,  because  it  is  now  to  be  settled  as  a  par- 
tial loss,  of  which  we  shall  speak  hereafter. '  For  it  is  the 
purpose  and  effect  of  an  abandonment  to  convert  an  actual 
partial  loss  into  a  constructive  total  loss.  And  if  he  makes  an 
abandonment  when  he  has  no  right  to  make  it,  such  aban- 
donment is  wholly  inoperative,  unless  the  insurers  choose  to 
accept  it ;  but  if  they  accept  it,  they  must  settle  the  loss  as  a 
total  loss. 

The  topics  in  relation  to  this  subject  which  we  will  consider 
are  : — i.  The  necessity  of  abandonment.  2.  The  right  of  aban- 
donment. 3.  The  exercise  of  this  right.  4.  The  acceptance  ol 
the  abandonment.  5.  The  effect  of  the  abandonment,  or  of  the 
absence  of  abandonment. 

1.  Of  the  Necessity  of  Abandonment. — It  is  said,  that  if  a 
ship  be  completely  wrecked  and  reduced  to  "a  mere  congerie? 
of  planks  and  iron,"  or  if  she  has  not  been  heard  from  for  a 
sufficiently  long  time,  there  need  be  no  abandonment,  and  the 
insured  may  claim  as  for  a  total  loss,  without  one.  In  either 
case,  or  any  other  case,  if  the  insurers  pay  a  total  loss,  they  are 
entitled  to  whatever  shall  come  to  hand  of  the  property  insured. 
And  it  is  usual,  and  we  think  more  proper,  to  abandon  in  botti 
of  these  cases. 

2.  Of  the  Right  of  Abandonment. — The  insured  cannot 
convert  every  partial  loss,  however  small,  into  a  total  loss,  by 
abandonment,  transferring  the  damaged  property  to  the  insurers. 
But  by  a  rule  w^hich  is  nearly  universal  in  this  country,  and 
not  unknown  abroad,  if  the  damage  by  a  peril  insured  against 
exceed    one-half    of    the   value    of    the    property    insured,^ 

•whether  ship,  goods,  or  freight, — he  may  abandon  the  property 
to  the  insurers,  and  claim  as  for  a  total  loss.  But  if  the 
vessel" actually  reaches  her  destined  port,  she  cannot  be  aban- 
doned, although  the  repairs  would  cost  more  than  half  of  her 
value. 

When  we  speak  in  another  section  of  partial  loss,  it  will  be 


398  MARINE  INSURANCE. 

seen  that,  by  the  established  usage  of  this  country,  an  allowance 
of  "one-third,  new  for  old,"  is  always  made.  This  means,  that 
if  a  new  thing  were  given  for  an  old  one  because  the  old  one 
had  been  injured,  the  insurer  would  be  more  than  indemnified. 
The  sails,  for  example,  might  be  so  new  that  they  had  lost  little 
of  their  value  ;  or  so  old,  that  they  were  of  no  value.  To  avoid 
inquiring  into  each  case,  usage  has  adopted,  as  a  fair  average  to 
apply  to  all  cases,  that  the  thing  injured  has  lost  one-third  of  its 
value.  When  it  is  replaced  by  repairs,  the  insured  therefore 
loses  one-third  of  the  cost  of  repair,  and  the  insurers  pay  two- 
thirds. 

Now  our  policies  provide  that  there  shall  be  no  total  loss  by 
abandonment  unless  the  injury  exceed  fifty  per  cent,  when  "  esti- 
mated as  for  a  partial  loss  ; "  that  is,  one-third  off.  Consequently, 
the  repairs  necessary  to  restore  the  vessel  to  a  sound  condition 
must  amount  to  more  than  seventy-five  per  cent,  of  her  value 
when  repaired  (one-third  of  which,  twenty-five  per  cent.,  being 
cast  off,  leaves  fifty  per  cent.)  before  there  can  be  an  abandon- 
ment, which  the  insurers  are  bound  to  accept,  and  settle  the  loss 
as  a  total  loss. 

The  valuation  in  the  policy,  if  there  be  one,  generally 
determines  the  value  on  which  this  estimate  is  to  be  made.  In 
New  York  and  in  Massachusetts,  this  seems  to  be  distinctl); 
held ;  but  the  courts  of  the  United  States  and  of  some  of  our 
Stat.es,  incline  to  say  that,  whether  the  policy  be  valued  or 
open,  the  value  of  the  ship,  the  loss  of  one-half  of  which 
authorizes  abandonment,  is  the  actual  value  of  the  ship  at  the 
time  the  loss  occurs,  and  that  this  value  is  to  be  proved  by 
proper  evidence. 

A  loss  by  jettison,  by  salvage,  by  general  average  contribu- 
tion, by  wages  of  sailors  paid  while  they  assisted  in  making  the 
repairs,  should  be  included  in  the  fifty  per  cent.  If  the  insured 
have  lost  a  part  of  his  goods  by  jettison,  and  have  a  claim  for 
contribution  which  is  not  yet  paid,  the  whole  of  his  loss  is  to  be 
included  to  make  up  the  fifty  per  cent.,  and  the  insurers  take 
the  claim  to  contribution  by  abandonment.  Thus,  if  his  loss  be 
by  jettison  of  eight-tenths  of  his  goods,  it  is  eighty  per  cent., 
and  if  he  has  a  claim  for  contribution  in  general  average  for 


FORM  OF  ABANDOXMENT. 


399 


thirty-five  per  cent.,  this  does  not  reduce  his  loss  to  forty-five 
per  cent.,  so  that  he  cannot  abandon  ;  but  he  may  call  his  loss 
eighty  per  cent,  and  abandon,  and  by  the  abandonment  transfer 
to  the  insurers  his  claim  for  thirty-five  per  cent.  The  expense 
of  repairs  is  to  be  taken  at  the  place  where  actually  made,  or 
where  they  must  have  been  made,  if  made  at  all. 

If  a  sale  be  lawfully  made  by  the  master,  under  the  authority 
from  necessity  which  we  have  considered  in  the  chapter  on  the 
Law  of  Shipping,  this  is  a  total  loss,  and  the  insured  must- 
account  for  the  proceeds. 

3.  Of  the  Exercise  of  the  Right  of  Abandonment. — As 
an  abandonment  has  the  effect  of  an  absolute  transfer  of  the 
property  to  the  insurers,  and  is  intended  for  this  purpose,  it  is 
obvious  that  it  cannot  be  made  by  one  who  is  not  possessed  of 
lUich  title  to  the  property,  or  such  interest  therein,  as  would 
enable  him  to  make  a  valid  transfer. 

There  is  no  especial  form  or  method  of  abandonment.  But 
the  proper  and  safe  way  is  to  do  it  in  writing,  and  to  use  the 
word  "abandon,"  or  "abandonment,"  although  other  words  of 
(Entirely  equivalent  meaning  might  suffice.  It  must  be  distinct 
and  unequivocal,  and  state,  at  least  in  a  general  way,  the  grounds 
of  the  abandonment. 

The  following  would  be  a  good  and  sufficient  form  : 

(101.) 
Abandonment. 

New  York,  January  9,  1878,  10  o'clock  A.  M. 

I  have  this  day  learned  that  my  {or  the)  ship  {or  whatever  the  vessel  is), 
insured  by  you  {or  of  which  y  011  have  insured  the  cargo  or  freight  or  profits, 
as  the  case  may  be),  has  been  wrecked  on  her  voyage  from 
to  {or  has  j/iet  with  such  or  such  a  disaster,  describing  it 

generally),  and  that  she  now  lies  at  {or  that  said  cargo  or 

what  remains  of  it  is  now  at  '  ).     And  I  do  now  and 

hereby  abandon  to  you  the  ship,  with  her  cargo  and  freight  {or  whichever  of 
these  interests  was  the  subject  of  insicrance),  and  shall  claim  payment  of  you 
as  for  a  total  loss. 

To  the  Insurance  Company. 

(Signature^ 

If  the  abandonment  be  deficient  in  form,  the  insurers  will 


400 


MARINE  INSURANCE. 


waive  any  objection  of  this  kind  if  they  call  for  further  proof, 
and  otherwise  act  as  if  the  abandonment  were  altogether 
sufficient. 

The  insured  may  abandon  at  any  time  when  the  ship  by  a 
peril  insured,  is  taken  for  an  uncertain  period  from  the  master's 
control,  and  the  voyage  is  broken  up  and  cannot  be  renewed, 
unless  at  a  cost  which  of  itself  gives  this  right. 

The  existence  of  the  right  depends  upon  the  actual  state  of 
facts  at  the  time,  and  not  upon  the  supposed  facts.  Nothing, 
however,  gives  the  right  of  instant  abandonment,  without  a 
faithful  endeavor  of  the  master  to  find,  if  he  can,  and  use,  if  he 
can,  some  means  of  deliverance  and  safety.  But  if,  when 
delivered  and  restored  to  the  master  or  owner,  her  damage 
amounts  to  more  than  half  of  her  value,  estimated  as  above 
stated,  "  as  a  partial  loss,"  she  may  then  be  abandoned.  If  the 
precise  voyage  insured  be  broken  up  by  a  peril  insured  against, 
this  justifies  an  abandonment,  although  the  vessel  might  be  put 
in  condition  to  pursue  a  different  voyage  or  render  a  different 
service. 

As  the  insurers,  who  take  the  salvage  (or  saved)  property 
by  abandonment,  have  a  right  to  every  possible  opportunity  to 
make  the  most  of  it,  it  follows  as  an  invariable  and  universal 
rule,  that  the  insured  Dnist  make  an  abandonment  immediately 
after  he  receives  the  intelligence  which  justifies  it;  and  if  he 
does  not,  he  will  be  regarded  as  having  elected  not  to  abandon, 
and  no  subsequent  abandonment  will  have  any  effect. 

The  abandonment  may  be  made  on  information  of  any  kind, 
if  it  be  entitled  to  weight  and  credence.  So  even  a  general 
rumor,  without  specific  intelligence  to  the  insured,  will  authorize 
an  abandonment,  if  the  rumor  seems  to  be  well  grounded  and 
altogether  credible. 

4.  Of  the  Acceptance  of  the  Abandonment. — As  there 
is  no  especial  form  or  method  of  making  an  abandonment,  so 
there  is  no  regular  and  established  form  of  accepting  an  aban- 
donment. Indeed,  an  acceptance,  merely  as  such,  or  in  so 
many  words,  is  seldom  made.  And  as  the  insurer's  accepting 
is  not  necessary  to  give  full  effect  to  an  abandonment  which 
has  been  made  on  proper  grounds,  and  in  the  right  way  and 
time,  it  is  seldom  asked  for. 


TOTAL  LOSS  AND  ABANDONMENT. 


4Cr 


The  acceptance  of  the  abandonment  may  be  inferred  from 
word's,  or  acts.  The  question  has  arisen  whether  it  could  be 
inferred  from  mere  silence;  and,  in  general,  it  cannot.  "A.i 
insurer  is  not  bound,"  says  Mr.  Justice  Story,  "  to  signify  his 
acceptance.  If  he  says  nothing,  and  does  nothing,  the  proper 
conclusion  is,  that  he  does  not  mean  to  accept  it." 

The  rule  may  be  stated  thus.  If  the  insurer,  with  a  suffi- 
cient knowledge  of  the  facts,  says  or  does  that  which  induces 
an  honest  insured  to  believe  that  he  has  accepted  the  abandon- 
ment, and  will  pay  the  loss,  and  to  act  on  that  belief,  it  is  an 
acceptance,  and  is  so  far  binding  on  the  insurer.  But  if  he 
neither  says  nor  does  what  ought  to  produce  this  belief,  then  he 
is  at  liberty  to  say  and  prove  if  he  can  that  the  insured  had  no 
right  to  make  an  abandonment,  and  that  the  claim  is  only  one 
for  a  partial  loss. 

5.  Of  the  Effect  of  Abandonment. — We  regard  it  is  an 
ancient,  reasonable,  and  well-established  rule,  that,  if  insurers 
pay  as  for  a  total  loss,  this  payment  entitles  them  to  full  po'^ses 
sion  of  all  that  remains  of  the  property  insured,  and  also  of  all 
rights,  claims,  or  interests  which  the  insured  has  in  or  to  or  in 
respect  of  the  property  lost,  and  which,  if  he  valued  or  enforced 
them  himself,  would,  if  added  to  the  amount  paid  by  the 
insurers,  give  him  a  double  indemnity.  Hence,  if  the  insured 
has  lost  his  goods  by  jettison,  and  has  a  claim  for  a  general 
"average  contribution,  and  the  insurers  pay  him  for  all  his  goods, 
they  stand  in  his  place,  and  acquire  that  claim  for  contribution 
which  the  loss  of  the  goods  gave  him.  And  we  should,  very 
generally  at  least,  extend  this  rule  to  the  claim  which  a  mort- 
gagee has  on  the  mortgage  for  his  debt.  That  is,  if  the  insurers 
pay  for  the  loss  of  the  property  which  secures  the  debt,  they 
acquire,  to  the  extent  of  their  payment,  the  mortgagee's  claim 
against  the  debtor. 

By  the  abandonment,  both  the  owner  and  the  master  become 

to    some   extent,   the   trustees  and  agents  of   the  insurers,  in 

respect  to  the  property  abandoned ;  and  are  bound  to  act,  in 

relation  to  it,  with   care  and  honesty.     Still,  if  the  property, 

after  abandonment,  or  after  a  loss  for  which  there  is  to  be  an 

abandonment,  be  further  lost  or  wasted,  by  the  bad  faith  or 
26 


402 


MARINE  INSURANCE. 


neglect  of  the  master,  or  of  the  consignee  of  the  owner,  while 
they  continue  to  act  as  such,  this  loss  must  be  made  up  by  the 
owner,  because,  although  they  are,  in  a  certain  sense,  agents  of 
the  insured,  they  are  then  agents  of  the  owner,  and  he  is 
responsible  for  them  to  the  insured. 

Goods  are  totally  lost  if  destroyed,  or  if  so  injured  as  to 
hav^e  little  or  no  value  for  the  purpose  for  which  they  are 
ntended ;  or  if  the  voyage  upon  which  the  insurance  on  the 
goods  was  effected  is  entirely  broken  up.  But  a  mere  delay 
gives  no  right  of  abandonment.  And,  in  addition  to  all  this, 
the  rule  which  permits  abandonment  if  more  than  fifty  per  cent, 
be  lost,  of  which  we  have  already  spoken,  is  applicable  to  goods, 
in  this  country  ;  subject,  however,  to  the  important  qualification, 
that  it  does  not  apply  if  any  substantial  portion  of  the  goods 
arrive  at  their  destination  uninjured ;  or  if  the  goods  are  insurecl 
"free  from  average."  And  the  rule  of  abandonment,  salvage^ 
and  transfer  to  the  insurers,  is  the  same  in  relation  to  goods  as 
to  the  ship. 

If  there  be  many  several  shipments  all  insured,  there  may 
^t)e  a  total  loss  of  one,  a  partial  loss  of  another,  and  no  loss  of  a 
third. 

SECTION  XXV. 

GENERAL   AVERAGE. 

This  subject  belongs  primarily  to  the  law  of  shipping,  and 
is  treated  of  in  the  chapter  on  the  Law  of  Shipping.  It-comes 
within  the  scope  of  the  law  of  insurance  only  when  any  of  the 
property  which  is  lost  or  saved  is  insured. 

If  an  owner  of  property  is  insured,  and  other  property  is 
sacrificed  to  save  the  insured  property  from  a  peril  common  to 
it  and  to  the  sacrificed  property,  the  insured  property  must  pay 
such  indemnity  to  the  owner  of  the  sacrificed  property  as  will 
nake  them  suffer  alike.  And  the  amount  thus  paid  or  contribu- 
ted by  the  insured  property  is  a  loss  by  a  sea-peril,  for  which 
the  insurers  are  liable. 

On  the  one  hand,  the  insurers  of  the  sacrificed  property  are 
under  an  obligation  to  pay  for  the  loss  thus  made  or  incurred 
voluntarily,  because  it  was  not  only  the  right,  but  the  duty,  of 


PARTIAL  LOSS. 


403 


the  master  and  crew  to  destroy  a  part  rather  than  let  the  whole 
perish.     It  was  therefore  a  loss  by  a  peril  of  the  sea,  although 
purposely  caused  for  the  benefit   of  others;    and  the  insurer 
must  pay  for  it. 

On  the  other  hand,  the  owners  of  the  property  sacrificed, 
acquire  by  its  sacrifice  a  claim  for  contribution  and  indemnity; 
and  if  the  insurers  pay  them  for  their  loss,  they  acquire  their 
claim  for  contribution.  And  this  they  take  advantage  of,  in 
some  cases,  by  deducting  it  from  the  amount  they  pay,  and  in 
other  cases  by  first  paying  all  the  loss,  and  then  collecting  all 
the  contribution  for  their  own  benefit.  We  have  already  seen 
that  the  insurers  cannot  deduct  the  contribution  for  the  purpose 
of  bringing  the  loss  below  fifty  per  cent.,  and  thereby  prevent- 
ing an  abandonment. 

SECTION  XXVI. 


PARTIAL   LOSS. 


A  PARTIAL  loss  is  simply  a  loss  of  a  part,  and  not  of  the 
whole.  The  principal  questions  relating  to  it  arise  out  of  the 
rule  of  one-third  off,  new  for  old,  which  has  been  already 
spoken  of.  We  repeat  the  rule,  with  the  reason  of  it.  A  ship 
sails  to-day  with  new  copper.  Another  sails  with  her  copper 
nearly  worn  out.  Both  meet  with  peril  which  requires  new 
coppering.  The  first  is  new  coppered,-  and  the  insurers  pay  for 
it,  and  the  insured  gains  nothing,  because  the  copper  on  her 
was  worth  as  much  as  it  is  now.  The  second  is  also  coppered, 
and  the  insurers  pay  for  it.  But  this  ship  gains  nearly  the 
whole  value  of  the  copper  put  on,  because  the  old  copper  was 
worth  very  little.  Now  the  whole  purpose  and  principle  of  the 
law  of  insurance  is  to  indemnify  the  insured,  or  make  his  loss 
good,  and  no  more.  Formerly  they  tried  to  do  it  by  finding  out 
in  each  case  how  much  the  old  materials  had  lost  of  their 
value.  But  this  was  found  so  difificult,  that  it  was  agreed  upon 
by  merchants  and  insurers  to  average  all  the  cases,  and  consider 
that  all  old  materials  had  lost  one-third  of  their  value.  And 
the  rule  is  found  to  work  well  in  practice. 

The  first  effect  of  this  rule  is,  that  the  thing  or  the  part  lost 
or  injured,  whether  it  be  new  or  old,  worn  out  or  not  worn  at 


404 


MARINE  INSURANCE. 


all,  must  be  replaced  or  repaired  in  adaptation  and  conformity 
with  the  vessel,  in  the  same  way  in  which  it  would  be  if  she 
were  properly  repaired  at  the  owner's  port,  by  his  orders. 

This  third  part  is  generally  deducted  from  dockage,  moving 
the  ship,  and  similar  expenses,  provided  they  are  incidental  to 
the  main  purpose  of  repair. 

The  value  of  the  old  materials  should  be  deducted  from  the 
expense  of  repair,  before  the  third  "new  for  old"  is  taken  off. 
If  a  sea-peril  makes  it  necessary  to  recopper  a  vessel,  and  the 
cost  will  be  $9,000,  and  her  old  copper  is  worth  $3,000,  we 
should  say  that  this  should  be  deducted,  leaving  $6,000,  for 
two-thirds  of  which  only  ($4,000),  one-third  being  off,  new  for 
old,  the  insurers  would  be  liable.  The  other  vv-ay  v/ould  be,  to 
say  the  cost  of  repair  is  $9,000,  of  which  the  insurers  would  pay 
two-thirds  ("  one-third  off "),  or  $6,000 ;  and  then  the  insurers* 
would  be  entitled  to  the  $3,000  which  her  old  copper  brings. 
Then  the  loss  of  the  insurers  would  be  only  $6,000  less  $3,000, 
or  $3,000,  instead  of  $4,000,  which  the  insurers  would  lose  on 
the  first  way.  Insurers  have  tried  to  make  the  second  way  the 
law ;  but  the  first  way  is  now  pretty  well  established. 

If  an  owner  effects  insurance  on  a  part  only  of  the  value  of 
the  property  insured, — as  if  for  $5,000  on  a  ship  valued  at 
$10,000, — he  is  insured  for  half,  and  is  his  own  insurer  for  the 
other  half,  and  he  recovers  in  the  same  proportion  from  the 
insurers  in  case  of  a  partial  loss.  Thus,  if  there  be  a  partial 
loss  of  sails  and  rigging,  or  of  repairs,  amounting,  after  one 
third  is  deducted,  to  $2,000,  one-half  of  this  is  the  loss  of  the 
insurers,  and  they  pay  it  to  him,  and  one-half  is  his  own  loss. 

The  insurer  takes  no  part  of  the  risk  of  the  market,  and  his 
liability  is  the  same  whether  that  rises  or  falls,  although  this 
may  make  a  great  difference  as  to  the  amount  lost  by  the 
insured.  What  goods  have  lost  from  their  original  invoice 
value  is  the  amount  which  the  insurer  pays.  Thus,  if  he 
insures  $10,000  on  goods  of  which  that  is  the  original  value, 
and  they  are  so  far  damaged  by  a  sea-peril,  that  at  the  port  of 
discharge  they  bring,  or  are  worth,  only  half  of  what  they  would 
have  brought  if  they  had  not  been  damaged,  the  insurers  are 
liable  for  $5,000,  or  that  half,  although  the  goods  thus  damaged 


USUAL  SUBJECT  AND  FORM  OF  THIS  IXSURAXCE.     405 

may  bring  in  the  market  of  arrival  the  whole  of  their  invoice 
cost  or  more.  And  if  they  bring  but  a  quarter  of  it,  the 
jisurers  pay  no  more  than  one-half,  because  the  rest  of  the  loss 
is  caused  by  the  falling  market. 

If  the  goods  have  sustained  damage  or  loss  by  leakage,  or 
by  breakage,  or  by  natural  decay,  or  from  inherent  defect  in 
quality, — that  is,  not  by  a  sea-peril, — before  the  partial  loss  occurs, 
e  proportional  deduction  should  be  made  from  the  partial  loss, 
as  the  insurers  are  liable  only  for  the  injury  resulting  from  that 
loss,  and  not  for  any  part  of  that  which  already  existed  when 
the  loss  took  place,  or  which  has  occurred  since  from  causes 
against  which  they  did  not  insure. 


CHAPTER  XXVII. 

FIRE  INSURANCE. 


SECTION  I. 

THE   USUAL    SUBJECT    AND    FORM    OF    THIS   INSURANCE. 

This  kind  of  insurance  is  sometimes  made  to  indemnify 
against  the  loss  by  fire  of  ships  in  port  ;  more  often  of  ware- 
houses, and  mercantile  property  stored  in  them ;  or  of  personal 
property  in  stores  or  factories,  in  dwelling-houses  or  barns,  as 
merchandise,  furniture,  books  and  plate,  or  pictures,  or  live 
stock.  But  by  far  the  most  common  application  of  this  mode 
of  insurance  is  to  dwelling-houses. 

Like  marine  insurance,  it  may  be  effected  by  any  individual 
who  is  capable  of  making  a  legal  contract.  In  fact,  however, 
it  is  always,  or  nearly  alwavs,  in  this  country,  and  we  suppose 
elsewhere,  made  by  companies. 

There  are  stock  companies,  in  which  certain  persons  own 
the  capital  and  take  all  the  profits  by  way  of  dividends  ;  and 
mutual  companies,  in  which  every  one  who  is  insured  becomes 
thereby  a  member,  and  the  net  profits,  or  a  certain  proportion 
of  them,  are  divided  among  all  the  members  in  such  manner  as 


406  FIRE  INS  [/RANGE. 

the  charter  or  by-laws  of  the  company  may  direct.  Sometimes 
both  kinds  are  united,  in  which  case  there  is  a  capital  stock 
provided,  as  a  permanent  guaranty  fund,  over  and  above  the 
premiums  received,  and  a  certain  part  or  proportion  of  the  net 
profits  is  paid  by  way  of  dividend  upon  this  fund,  and  the 
residue  divided  among  the  insured. 

Of  late  years  the  number  of  mutual  fire-insurance  compa- 
nies has  greatly  increased  in  this  country,  and  much  the  largest 
amount  of  insurance  against  fire  is  effected  by  them.  The 
principal  reason  for  this  is,  undoubtedly,  their  greater  cheap- 
ness ;  the  premiums  required  by  them  being,  in  general,  much 
less  than  in  the  stock  offices.  For  example,  if  the  insurance 
is  effected  for  seven  years,  which  is  a  common  period,  an  amount 
or  percentage  is  charged,  about  the  same  os  that  charged  by  the 
stock  companies,  or  a  little  more.  Only  a  small  part  of  this  is 
taken  in  cash  ;  for  the  rest  a  premium  note  or  bond  is  given, 
promising  to  pay  whatever  part  of  the  amount  may  be  needed 
for  losses  which  shall  occur  during  the  period  for  which  the 
note  is  given.  More  than  this,  therefore,  the  insured  cannot 
be  bound  to  pay,  and  it  frequently  happens  that  no  assessment 
whatever  is  demanded  ;  and  sometimes,  where  the  company  is 
well  established  and  does  a  large  business  upon  sound  princi- 
ples, a  part  of  the  money  paid  by  him  is  refunded  when  the 
insurance  expires,  or  credited  to  him  on  the  renewal  of  the 
policy,  if  such  be  his  wish. 

The  disadvantage  of  these  mutual  companies  is,  that  the 
premiums  paid  and  premium  notes  constitute  the  whole  capital 
or  fund  out  of  which  losses  are  to  be  paid  for.  To  make  this 
more  secure,  it  is  provided  by  the  charter  of  some  companies, 
that  they  shall  have  a  lien  on  the  land  itself  on  which  any 
insured  building  stands,  to  the  amount  of  the  premium.  But 
while  this  adds  very  much  to  the  trustworthiness  of  the 
premium  notes,  and  so  to  the  availability  of  the  capital,  it  is, 
with  some  persons,  an  objection,  that  their  land  is  thus  sub- 
jected to  a  lien  or  incumbrance. 

There  is  another  point  of  difference  which  recommends  the 
stock  company  rather  than  the  mutual  company.  It  is  that  the 
stock  company  will  generally  insure  more  nearly  the  full  value 


USUAL  SUBJECT  AND  FORM  OF  THIS  INSURANCE.    407 

of  the  property  insured ;  while  the  mutual  corr-vanies  are  gen- 
erally restrained  by  their  charters  from  insuring  more  than  a 
certain  proportion,  namely,  from  one-half  to  three-fourths  of 
the  assessed  value  of  the  property.  It  would  follow,  therefore, 
that  one  insured  by  a  mutual  company  cannot  be  fully  indemni- 
fied against  loss  by  fire  ;  and  may  not  be  quite  so  certain  of 
getting  the  indemnity  he  bargains  for  as  if  he  were  insured  by 
a  stock  company. 

The  method  and  operation  of  fire  insurance  have  become 
quite  uniform  throughout  this  country  ;  and  any  company  may 
appeal  to  the  usage  of  other  companies  to  answer  questions 
which  have  arisen  under  its  own  policy  ;  only,  however,  within 
certain  rules,  and  under  some  well-defined  restrictions. 

In  the  first  place,  usage  may  be  resorted  to  for  the  purpose 
of  explaining  that  which  needs  explanation,  but  never  to  con- 
tradict that  which  is  clearly  expressed  in  the  contract.  And 
no  usage  can  be  admitted  even  to  explain  a  contract,  unless  the 
usage  be  so  well  established,  and  so  well  known,  that  it  may 
reasonably  be  supposed  that  the  parties  entered  into  the  con- 
tract with  reference  to  it.  And  not  only  the  terms  of  the  cou' 
tract  must  be  duly  regarded,  but  those  of  the  charter  or  act  cf 
incorporation. 

In  regard  to  the  execution  of  a  fire  policy,  and  what  isi 
necessary  to  constitute  such  execution,  we  say  that  delivery  if* 
not  strictly  necessary,  and  a  signed  memorandum  may  be  suff'v 
cient,  or,  indeed,  an  oral  bargain  only,  and  that  this  insurance 
may  be  effected  by  correspondence,  and  that  the  contract  is 
completed  when  there  is  a  proposition  and  assent,  as  we  havf- 
already  said  in  reference  to  marine  insurance. 

It  has  been  held  in  an  action  on  a  fire  policy,  as  doubtless  it 
would  be  on  a  marine  policy,  that  a  memorandum  made  on  the 
application  book  of  the  company  by  the  president,  and  signed 
by  him,  was  not  binding,  where  the  party  to  be  insured  wished 
the  policy  to  be  delayed  until  a  different  adjustment  of  the 
terms  could  be  settled,  and  after  some  delay  was  notified  by 
the  company  to  call  and  settle  the  business,  or  the  company 
would  not  be  bound,  and  he  did  not  call ;  because  there  was 
I^ere  no  consummated  agreement.     So,  too,  a  subsequent  adop- 


408  FIRE  INSURANCE. 

tion  or  ratification  of  a  policy  made  by  an  agent  is  equivalent, 
either  in  a  fire  or  marine  policy,  to  the  making  originally  of  the 
contract. 

SECTION  II. 

THE   CONSTRUCTION    OF   POLICIES   AGAINST   FIRE. 

It  is  sufficient  if  the  words  of  the  policy  describe  the  persons, 
the  location,  and  the  property,  with  so  much  distinctness  that 
the  court  and  jury  have  no  difficulty  in  determining  their  iden- 
tity with  a  certainty  which  prevents  any  real  and  substantial 
doubt. 

In  the  construction  of  this  as  of  other  contracts,  the  inten- 
tion of  the  parties  is  a  very  important  and  influential  guide; 
but  it  must  be  the  intention  as  expressed ;  for  otherwise,  a  con- 
ti'act  which  was  not  made  would  be  substituted  for  that  which 
Hias  made;  and  evidence  from  without  the  contract  would  be 
permitted  to  vary  and  to  contradict  it.  Thus,  where  stock  in 
trade,  household  furniture,  linen,  wearing-apparel,  and  plate  were 
insured  in  a  policy,  the  court  held  that  the  term  "linen"  must 
he  confined  to  "household  linen,"  and  would  not  include  linen 
;lrapery  goods  purchased  on  speculation.  In  a  case  where  the 
"policy  required  that  the  houses,  buildings,  or  other  places  where 
goods  are  deposited  and  kept,  shall  be  truly  and  accurately 
described,  and  the  place  was  described  as  the  dwelling-house  of 
the  insured,  whereas  he  occupied  only  one  room  in  it,  as  a 
iodger,  this  description  was  held  sufficient. 

It  was  held  in  another  case,  that  the  insurance  by  an  inn- 
keeper against  fire  of  his  "interest  in  the  inn  and  offices,"  does 
not  cover  the  loss  of  profits  during  the  repair  of  the  damaged 
premises.  And  in  another,  the  words  "stock  in  trade,"  when 
used  in  a  policy  of  insurance  in  reference  to  the  business  of  a 
mechanic,  as  a  baker,  were  held  to  include  not  only  the  materials 
used  by  him,  but  the  tools,  fixtures,  and  implements  necessary 
for  the  carrying  on  of  his  business  ;  and  the  words  in  question 
were  held  to  have  a  broader  application  to  the  business  of 
mechanics  than  to  that  of  merchants. 

A  policy  upon  wearing-apparel,  household  furniture,  and  the 
stock  of  a  grocery,  covers  linen  sheets  and  shirts  actually  laid  in 


CONSTRUCTION  OF  POLICIES  AGAINST  FIRE.        ^qc) 

for  family  use,  and  such  as  were  laid  in  for  sale  or  traffic  in  the 
usual  way,  in  the  store  ;  but  not  such  as,  being  smuggled,  were 
concealed  and  intended  for  secret  sale. 

There  is  no  material  difference  in  respect  to  mistake,  or  the 
correction  of  it,  between  fire-policies  and  marine-policies ;  and 
the  law  on  this  subject  in  relation  to  the  latter  has  already  been 
stated.  And  the  same  remark  may  be  extended  to  the  rule 
lespecting  the  admission,  as  a  part  of  the  contract,  of  a  memo- 
randum on  the  back  of  the  policy,  or  attached  to  it  by  a  wafer, 
and  neither  referred  to  in  the  policy  itself,  nor  signed  by  the 
insurer. 

It  is  a  general  rule  with  our  mutual  insurance  companies, 
that  every  one  who  is  insured  becomes  a  member  of  the  com- 
I)any. 

And  it  follows,  necessarily,  that  every  insured  party  is  bound 
by  all  the  laws  and  rules  of  the  company,  as  by  laws  and  rules 
cf  his  own  making. 

The  mutual  fire-insurance  companies,  by  a  law  or  rule  which 
is  perhaps  universal,  require  that  an  application  shall  be  made 
in  writing;  and  this  written  application  is  after  a  peculiar  form, 
prescribed  by  the  rules.  It  always  contains  certain  definite 
statements,  which  relate  to  those  matters  which  affect  the  risk 
of  fire  importantly.  In  each  form  of  application  sundry  ques- 
tions are  put,  which  are  quite  numerous  and  specific,  and  are 
those  which  experience  has  suggested  as  best  calculated  to  elicit 
all  the  information  needed  by  the  insurers  for  the  purpose  of 
estimating  accurately  the  value  of  the  risk  they  undertake. 
Specific  answers  must  be  given  to  all  these  questions.  And 
this  application,  with  all  these  statements,  questions,  and 
answers,  is  expressly  referred  to  in  the  policy,  and  made  a  part 
of  the  contract. 

It  is  common  to  state  in  the  printed  part  of  the  formal  appli- 
cation, that  it  is  made  on  such  and  such  conditions ;  and  these 
usually  follow  those  statements  which  are  deemed  the  most 
material  in  estimating  the  risk.  These  would  be  considered  as 
express  conditions,  and  therefore  the  substantial  truth  of  all  of 
them  is  a  condition  precedent  to  any  right  of  indemnity  in  the 
insured  party.     By  the  legal  phrase  condition  precedent,  is  meant 


4ro 


FIRE  INSURANCE. 


a  condition  which  must  be  fully  complied  with  before  the  con- 
tract can  take  effect.  Hence,  if  any  of  these  statements  are 
false,  the  policy  will  be  void. 

Sometimes  there  is  no  distinct  application  in  writing,  but  the 
policy  itself  states  the  facts  relied  upon.  For  this  purpose  it 
contains  many  blanks,  which  are  filled  up  according  to  the  cir- 
cumstances of  each  case.  It  may  happen  that  what  is  written 
in  these  places  may  be  inconsistent  with  what  is  printed ;  and 
then  it  is  a  general  rule  that  what  is  written  prevails,  as  that  is 
more  immediately  and  specifically  the  act  of  the  parties,  and 
may  be  supposed  to  express  their  precise  purpose  better  than 
the  printed  phrases  which  were  prepared  without  especial  refer- 
ence to  any  particular  case.  But  this  rule  would  not  be  applied 
where  it  would  obviously  operate  injustice. 

Policies  of  fire  insurance,  especially  of  mutual  companies, 
often  contain  a  scale  of  premiums,  as  calculated  upon  different 
classes  of  buildings,  of  stocks  in  trade,  or  other  property,  in 
conformity  with  what  is  thought  to  be  the  greater  or  less  risk  of 
fire  in  each  case.  This  is  a  matter  of  special  importance ;  and 
if  a  statement  were  made  by  an  applicant  which  put  his  building 
or  property  into  a  class  of  which  the  risk  and  premium  were 
less  than  for  the  class  to  which  the  building  or  property  actually 
belonged,  and  in  that  way  an  insurance  was  effected  at  such  less 
premium,  the  policy  would  undoubtedly  be  void,  even  if  the  false 
statement  were  made  innocently. 

When  certain  trades  or  occupations,  or  certain  uses  of  build- 
ings, or  kinds  and  classes  of  property,  are  enumerated  as  "haz- 
ardous," or  otherwise  specified  as  peculiarly  exposed  to  risk,  the 
rule,  The  expression  of  one  thing  excludes  what  is  not  exp7'essed, 
is  applied,  and  sometimes  with  severity.  This  is  better  illus- 
trated by  marine  insurance.  Thus,  in  a  case  in  New  York, 
precisely  in  point,  dried  fish  were  enumerated  in  the  memoran- 
dum clause  as  free  from  average,  and  "  all  other  articles  perish- 
able in  their  own  nature."  It  was  held  that  the  naming  of  one 
description  of  fish  implied  that  other  fish  were  not  intended ; 
and  that  the  subsequent  words,  "  all  other  articles  perishable  in 
their  own  nature,"  were  not  applicable,  and  did  not  repel  this 
implication.  The  same  rule  would  be  applied,  for  the  same 
reason,  and  in  the  same  way,  to  cases  of  fire  insurance. 


CONSTRUCTION  OF  POLICIES  AGAINST  FIRE. 


411 


If  the  printed  conditions  represent  one  class  of  buildings,  or 
goods,  or  property,  as  more  hazardous  than  another,  it  would  not 
be  competent  for  the  insured,  whose  property  was  of  that  kind, 
to  prove  by  other  testimony  that  it  was  not  more  hazardous  in 
fact.  Moreover,  a  description  of  the  property  insured,  as  it  is 
a  description  for  a  contract  on  time,  is  held  to  amount  to  an 
agreement  that  the  property  shall  continue  within  the  class 
where  it  is  put,  or  at  least  shall  not  enter  into  another  that  is 
declared  to  be  more  hazardous,  during  the  operation  of  the 
policy.  There  must,  however,  be  a  rational,  and  perhaps  a  lib- 
eral, construction  of  this  rule.  Thus,  it  does  not  apply  where 
a  single  article,  or  one  or  two,  are  kept  in  a  store  as  a  part  of 
the  stock  of  goods,  although  that  article,  as  cotton  in  bales,  is 
among  those  enumerated  as  hazardous.  So  if  the  "  storing  of 
spirituous  liquors  "  is  prohibited,  the  keeping  of  wine  or  brandy 
in  a  private  house  for  consumption,  or  even  for  sale  by  retail  to 
boarders,  would  not  discharge  the  insurers. 

In  New  York  it  was  held  that  where  oils  and  turpentine, 
which  were  classed  among  hazardous  or  extra-hazardous  articles, 
were  introduced  for  the  purpose  of  repairing  and  painting  thf.' 
dwelling  insured,  and  the  dwelling  was  burned  while  being  so 
repaired,  the  insurers  were  liable.  But  if  the  building  is  gen 
erally  appropriated  to  a  more  hazardous  occupation  than  the 
proposals  or  the  policy  indicate,  or  if  the  jury  find  that  th«» 
introduction  of  these  goods  materially  increased  the  actual  risk, 
evidence  would  be  received  as  to  the  intention  of  the  parties  tc 
the  contract.  And  the  true  meaning  of  the  contract  and  the 
intent  of  the  parties  would  be  considered.  Thus,  where  the 
"storing"  of  certain  goods  was  prohibited,  as  "hazardous,"  it 
was  held  that  the  having  a  pipe  or  two  of  such  articles  in  the 
cellar,  from  which  smaller  vessels  in  the  store  were  replenished, 
did  not  come  within  the  meaning  of  the  word  "storing"  in  the 
policy,  any  more  than  would  the  keeping  of  such  articles  for 
home  consumption  in  a  dwelling-house  insured  by  a  similar 
policy.  So  a  description  of  a  house  as  "at  present  occupied  as 
a  dwelling-house,  but  to  be  hereafter  occupied  as  a  tavern,  and 
privileged  as  such,"  is  only  permission  that  it  should  be  a 
tavern,  and  creates  no  obligation  to  occupy  and  keep  it  as  a 


412 


FIRE  INSURANCE. 


tavern  on  the  part  of  the  insured.  But  if  the  language  is,  "  to 
be  occupied  as  so  or  so,  but  not "  in  some  other  certain  way, 
this  restriction  is  a  part  of  the  bargain  ;  and,  if  the  building  is 
occupied  in  the  way  prohibited,  the  insurers  are  discharged. 

So  if  the  premises  are  described  as  a  "  private  residence,"  the 
insurance  is  not  avoided  by  the  fact  that  the  occupants  moved 
out  of  the  house,  leaving  it  vacant,  and  not  the  "  residence  "  of 
any  one,  unless  the  jury  find  that  the  risk  was  thereby  materi- 
r.ily  increased.  But  where  the  property  was  represented  as  a 
"  tavern  barn,"  and  the  insured  permitted  its  occupation  as  a 
livery-stable,  the  policy  was  held  to  be  discharged,  although 
the  keeper  of  the  livery-stable  was  removable  at  the  pleasure  of 
the  insured.  Where  a  building  insured  by  a  company  was  rep- 
'"esented,  at  the  time  of  effecting  the  insurance,  as  connected 
vith  another  building  on  one  side  only,  and  before  the  loss 
happened  it  became  connected  on  two  sides,  the  policy  was 
held  not  to  be  avoided  unless  the  risk  thereby  became  greater. 

The  general  subject  of  alterations  of  property  under  insur- 
ance against  fire  is  not  without  difficulty.  On  the  whole,  how- 
ever, mere  alterations,  although  expensive  and  important,  do  not 
necessarily  and  of  themselves  avoid  the  insurance  or  discharge 
the  insurers  ;  but  they  have  this  effect,  if  they  are  found  by  the 
j\iry  to  increase  the  risk  materially  ;  or  if  they  are  specifically 
prohibited  in  the  policy. 

Still  other  questions  may  arise  where  material  alterations  are 
made,  all  of  which  are  not  easily  disposed  of.  The  following  are 
instances.  Suppose  one  gets  his  dwelling-house  insured  for 
seven  years,  truly  describing  it  as  having  a  shingled  roof.  After 
two  or  three  years  he  determines  to  take  off  the  shingles,  but 
says  nothing  to  the  insurers  about  it.  If  he  now  puts  on  slates, 
or  a  metallic  covering  which  does  not  require  soldering,  he  does 
not  increase  the  risk ;  nor  is  the  work  of  putting  on  the  new 
covering  hazardous,  and  we  see  no  grounds  for  its  having  any 
effect  on  the  policy.  But  suppose  the  new  metallic  covering  is 
secured  by  soldering.  This  is  certainly  a  hazardous  operation. 
And  if  the  building  takes  fire  in  consequence  of  this  operation, 
the  insurers  are  certainly  discharged. 

If  the  operation  is  conducted  safely  through,  and  the  work 


CONSTRUCTION  OF  POLICIES  AGAINST  FIRE. 


413 


is  entirely  finished,  we  consider  it  clear  that  this  greater  hazard 
for  a  time  has  no  effect  whatever  on  the  policy  after  that  time, 
and  after  all  the  greater  hazard  has  expired.  But  let  us  suppose 
that  while  this  operation  is  going  forward,  and  the  house  is 
thereby  certainly  exposed  to  an  increase  of  risk,  the  house  is  set 
on  fire  by  an  incendiary, — without  the  slightest  reference  to  this 
alteration, — and  burns  down.  It  is  not,  perhaps,  settled,  either 
by  authority  or  practice,  whether  the  insurers  are  or  are  not  dis 
charged.  I  am,  however,  of  opinion  that  the  principles  of  insur- 
ance would  lead  to  the  conclusion,  that,  if  the  house  be  burned 
from  a  perfectly  independent  cause,  during  an  increase  of  risk 
incurred  for  good  cause  and  in  good  faith,  the  insurers  are  not 
thereby  discharged.  It  is,  however,  certain,  that  it  is  always 
prudent  to  obtain  the  consent  of  the  insurers  to  any  proposed 
alteration.  If  such  consent  be  asked,  and  refused,  we  do  not 
see  that  the  insurers  stand  on  any  better  footing,  or  the  insured 
on  any  worse  one ;  and  if  the  alterations  are  made  and  a  loss 
occurs,  we  should  say  that  the  insurers  would  not,  generally  at 
least,  be  discharged  because  of  their  refusal,  unless  they  would 
have  been  discharged  if  the  alteration  had  been  made  without 
their  knowledge.  For  if  they  have  a  right  to  obiect  or  refuse, 
it  could  only  be  because  the  contract  in  effect  prohibited  this 
alteration  ;  and  then  their  refusal  was  not  wanted  for  their 
defence.  And  if  they  have  no  right  to  refuse,  they  can  acquire 
no  rights  by  the  refusal. 

If  the  alteration  be  of  a  permanent  character,  and  causes  \ 
material  increase  of  the  danger  of  fire,  then  it  is  a  substantial 
breach  of  contract ;  and  we  should  hold  that  the  insurers  were 
discharged  as  soon  as  the  alteration  was  made,  and  indeed  as 
soon  as  the  making  of  it,  or  preparations  for  it,  as  scaffolding 
or  carpenter's  work,  materially  increased  the  risk.  And  they 
are  discharged  equally,  whether  the  fire  be  caused  by  the 
alteration,  or  by  the  work  done,  or  by  some  wholly  independent 
matter. 

The  insured  may  make  reasonable  repairs  without  especial 
leave,  and  the  insurers  are  liable,  although  the  fire  take  place 
while  the  repairs  are  going  on  ;  and  even  if  it  be  caused  by  the 
repairs. 


414 


FIRE  INSURANCE. 


It  may  be  added,  that  our  fire-policies  now  in  use  frequently 
give  the  insured  the  right  of  keeping  the  property  in  repair. 
The  failure  of  the  insured  to  repair  a  defect  in  the  building, 
arising  after  the  contract  is  made,  does  not  prevent  the  insured 
from  recovering  unless  he  was  guilty  of  gross  negligence. 

SECTION  III. 

THE   INTEREST  OF   THE   INSURED. 

Any  legal  interest  is  sufficient.  And  if  it  be  equitable  in 
the  sense  that  a  court  of  equity  will  recognize  and  protect  it, 
that  is  sufficient ;  but  a  merely  moral  or  expectant  interest  is 
not  enough.  So  one  has  an  insurable  interest  in  a  house  placed 
on  another's  land  with  that  other's  consent,  but  not  if  placed 
there  without  license  or  shadow  of  title.  So,  too,  one  who  has 
made  only  an  oral  bargain  with  another  to  purchase  the  other's 
house,  cannot  insure  it ;  but  if  there  be  a  valid  contract  in  law, 
or  if  by  writing  or  by  part  performance  it  is  enforceable  in  a 
court  of  equity,  the  purchaser  may  insure.  So,  if  a  debtor 
assign  his  property  to  pay  his  debts,  he  has  an  insurable 
interest  in  it  until  the  debts  are  paid,  or  until  the  property  be 
sold. 

A  partner  may  have  an  insurable  interest  in  a  building  pur- 
chased with  partnership  funds,  although  it  stands  upon  land 
owned  by  the  other  partner.  A  mortgagor  may  insure  the  whole 
value  of  his  property,  even  after  the  possession  has  passed  to 
the  mortgagee,  if  the  equity  of  redemption  be  not  wholly  gone. 
So  he  may  if  his  equity  of  redemption  is  seized  on  execution,  or 
even  sold,  so  long  as  he  may  still  redeem.  And  in  case  of  loss 
he  recovers  the  whole  value  of  the  building,  if  he  be  insured  on 
it  to  that  amount. 

A  mortgagor  and  a  mortgagee  may  both  insure  the  same 
property,  and  neither  need  specify  his  interest,  but  simply  call 
it  his  property.  The  mortgagee  has  an  interest  only  equal  to 
his  debt,  and  founded  upon  it ;  and  if  the  debt  be  paid,  the  inter- 
est ceases,  and  the  policy  is  discharged  ;  and  he  can  recover  no 
more  than  the  amount  of  his  df^bL 

It  has  been  helJ,  mat  if  a  mortgagor  is  bound  by  his  contract 


THE  INTEREST  OF  THE  INSURED.  415 

ivith  the  mortgagee  to  keep  the  premises  insured  for  the  benefit 
of  the  mortgagee,  and  does  keep  them  insured  in  his  own  name, 
the  mortgagee  has  an  equitable  interest  in  or  lien  upon  the  pro- 
ceeds of  the  policy. 

One  who  holds  property  only  in  right  of  his  wife  may  insure 
the  property,  even  if  his  wife  be  only  a  joint  tenant.  And  a 
tenant  for  years,  or  from  year  to  year,  may  insure  his  interest, 
but  would  recover  only  the  value  of  his  interest,  and  not  the 
value  of  the  whole  property. 

We  have  said  that,  generally,  any  one  having  any  legal 
interest  in  property  may  insure  it  as  his  own.  But  there  is  one 
important  exception  to  or  modification  of  this  rule.  By  the 
charters  of  many  of  our  mutual  insurance  companies,  the  com- 
pany has  a  lien,  to  the  amount  of  the  premium  note,  on  all  prop- 
erty insured.  It  is  obvious,  therefore,  that  no  such  description 
can  be  given,  or  no  such  language  used,  as  would  induce  the 
company  to  suppose  they  had  a  lien  when  they  could  not  have 
one,  or  would  in  any  way  deceive  them  as  to  the  validity  or 
value  of  their  lien.  In  all  such  cases  all  incumbrances  must 
be  stated,  and  the  title  or  interest  of  the  insured  fully  stated  in 
all  those  particulars  in  which  it  affects  the  lien. 

A  trustee,  agent,  or  consignee  may  insure  against  fire,  as  he 
may  against  marine  loss.  Generally,  the  consignee  is  not  bound 
to  insure  against  fire,  but  may,  at  his  discretion.  He  may  insure, 
expressly,  his  own  interest  in  them  for  advances,  or  the  owner's 
interest.  It  has  been  held  that  a  consignee  may,  by  virtue  of 
his  implied  interest  and  authority,  insure,  in  his  own  name, 
goods  in  his  possession  against  fire,  to  their  full  value,  and 
recover  for  the  benefit  of  the  owner.  And  if  the  interest  be  not 
expressed,  the  policy  will  be  construed  as  not  covering  the 
interest  of  the  owners,  if,  upon  a  fair  construction  of  the  words 
and  facts,  it  seems  to  have  been  the  intention  of  the  parties  only 
to  secure  the  consignee's  interest.  And  an  insurance  against 
fire  upon  merchandise  in  a  warehouse,  "for  account  of  whom 
it  may  concern,"  protects  only  such  interests  as  were  intended 
to  be  insured  at  the  time  of  effecting  the  insurance. 

It  is  now  common  for  a  commission  merchant  to  cover  in 
one  policy,  in  his  own  name,  all  the  goods  of  the  various  owners 


41 6  /-yyi'i^  INSURANCE. 

who  have  consigned  goods  to  him.  It  has  been  held,  that  the 
words  "goods  held  on  commission,"  in  fire-policies,  have  an 
effect  equivalent  to  the  words  "for  whom  it  may  concern,"  in 
marine-policies. 

■   A  person  having  a  lien  on  a  building  under  a  State  law  has 
an  insurable  interest  in  the  building. 

A  consignee  of  goods,  sent  to  him,  but  not  received,  may 
insure  his  own  interest  in  them.  So,  any  bailee  (which  means 
any  person  to  whom  property  has  been  delivered  for  any  pur- 
pose) who  has  a  legal  interest  in  the  chattels  which  he  holds, 
although  this  be  temporary  and  qualified,  may  insure  the  goods 
against  fire.  Thus  a  common  carrier  by  land,  who  has  alien  on 
the  goods,  and  is  answerable  for  them  if  lost  by  fire  (unless  it 
be  caused  by  the  act  of  God  or  the  public  enemy),  may  insure 
the  goods  to  their  full  value  against  fire. 

The  insurers  must  know  whom  they  insure,  for  they  may 
have  a  choice  of  persons,  and  it  is  important  to  them  to  know 
whether  they  are  to  depend  on  the  care  and  honesty  of  this  man 
or  that  man.  The  insured  must  so  describe  the  owner  as  not 
to  deceive  them  on  this  point,  and  so  he  must  the  kind  of  owner 
ship.  Thus,  if  he  aver  an  entire  interest  in  himself,  he  cannot 
support  this  by  showing  a  joint  interest  with  another  ;  and  if  in 
his  action  he  declare  the  latter,  proof  of  the  former  is  not 
sufficient. 

So,  too,  there  must  be  actual  authority  to  make  the  insu":- 
ance.  This  may  be  express,  or  implied,  in  some  cases,  as  it 
seems  to  be  implied  with  the  consignee,  or  the  carrier,  and  pei'"' 
haps,  generally,  with  any  one  who  has  an  actual  possession  of, 
interest  in,  and  lien  on,  the  property.  But  a  tenant  in  common 
does  not  derive  from  his  cotenancy  authority  to  insure  for  his 
cotenant  ;  nor  could  a  master  of  a  ship  or  a  ship's  husband, 
merely  as  such,  insure  the  owner's  interest  against  fire. 

SECTION  IV. 

DOUBLE   INSURANCE. 

By  this,  the  party  originally  insured  becomes  again  insured. 

If,  by  a  double  insurance,  the  insured  could  protect  himself  over 


WARRANTY  AiVD  REPRESEXTATION.  ^j-r 

and  over  again,  he  might  recover  many  indemnities  for  one  loss. 
This  cannot  be  permitted,  not  only  because  it  is  opposed  to  th 
first  principles  of  insurance,  but  because  it  would  tempt  to  fraud  ' 
and  make  it  very  easy. 

In*  this  country,  fire-policies  usually  contain  express  and 
exact  provisions  on  this  subject.  They  vary  somewhat,  but, 
generally,  they  require  that  any  other  insurance  must  be  stated 
by  the  insured,  and  indorsed  on  the  policy  ;  and  it  is  a  frequert 
condition,  that  each  office  shall  in  that  case  pay  only  a  ratable 
proportion  of  a  loss  ;  and  it  is  often  added,  that,  if  such  other 
hisurance  be  not  so  stated  and  indorsed,  the  insured  shall  not 
recover  on  the  policy.  And  it  has  been  held  that  such  a  condi- 
tion  applies  to  a  subsequent  as  well  as  to  a  prior  insurance  ;  or 
to  an  insurance  of  any  part  of  the  property  covered  by  the  other 
policy.  Nor  will  a  court  of  equity  relieve,  if  sufficient  notice 
and  indorsement  have  not  been  made.  But  it  has  been  held  that 
a  valid  notice  might  be  given  to  an  agent  of  the  company,  who 
was  authorized  to  receive  applications  and  survey  property  prc>- 
posed  for  insurance. 

In  some  instances  the  charter  of  the  company  provides  that 
any  policy  made  by  it  shall  be  avoided  by  any  double  insurance 
of  which  notice  is  not  given,  and  to  vvdiich  the  consent  of  the 
company  is  not  obtained,  and  expressed  by  their  indorsement 
in  the  policy.  But  this  would  not  apply  to  a  non-notice  by  an 
insured  of  an  insurance  effected  by  the  seller  on  the  house 
which  the  insured  had  bought,  if  this  policy  were  not  assigned  to 
the  buyer. 

SECTION  V. 

WARRANTY   AND    REPRESENTATION. 

A  WARRANTY  is  a  part  of  the  contract ;  it  must  be  distinctly 
expressed,  and  written  either  in  or  on  the  policy,  or  on  a  papeC 
attached  to  the  policy,  or,  as  has  been  held,  on  a  separate  papeC 
distinctly  referred  to  and  described  as  a  part  of  the  policy.  Then 
it  operates  as  a  condition  precedent ;  that  is,  as  a  condition  of  the 
policy,  which  if  it  be  not  performed,  the  policy  never  takes 
effect ;  if  it  be  not  performed,  there  is  no  valid  contract ;  nor 
can  the  non-performance  be  helped  by  evidence  that  the  thing 
27 


4i8 


FIRE  INSURANCE. 


warranted  was  less  material  than  was  supposed,  or,  indeed,  not 
material. 

It  may  be  a  warranty  of  the  present  time,  or,  as  it  is  called, 
affirmative,  or  of  the  future,  and  then  it  is  promissory.  And  it 
may  be,  although  of  the  present  and  affirmative,  a  continuing 
warranty,  rendering  the  policy  liable  to  avoidance  by  a  non- 
continuance  of  the  thing  which  is  warranted  to  exist.  Whether 
it  is  thus  continuing  or  not  must  evidently  be  determined  by 
the  nature  of  the  thing  warranted.  A  warranty  that  the  roof 
of  a  house  is  slated,  or  that  there  are  only  so  many  fire-places 
or  stoves,  would,  generally,  at  least,  be  regarded  as  continu- 
ing ;  but  a  warranty  that  the  building  was  five  hundred 
feet  from  any  other  building,  would  not  cause  the  avoidance 
of  the  policy  if  a  neighbor  should  afterwards  put  up  a  house 
within  one  hundred  feet,  without  any  act  or  privity  of  the 
insured. 

We  have  seen,  that  statements  made  on  a  separate  paper 
may  be  so  referred  to  as  to  make  them  a  i^art  of  the  policy. 
And  it  is  usual  to  refer  in  this  way  to  the  written  application 
of  the  insured,  and  to  all  the  written  statements,  descriptions, 
and  answers  to  questions,  which  he  makes  for  the  purpose  of 
obtaining  insurance.  But  a  fair  and  rational,  or,  in  some  cases, 
a  liberal  construction,  will  be  given  to  such  statements. 

It  is  quite  certain  that  the  word  warranty  need  not  be  used, 
if  the  language  is  such  to  import  unequivocally  the  same  mean- 
ing. And  an  indorsement  made  upon  the  policy  before  it  is 
executed  may  take  effect  as  a  part  of  it. 

A  statement  may  be  introduced  into  the  policy  itself,  and  be 
construed  not  as  any  warranty,  but  merely  as  a  license  or  per- 
mission of  the  insurers  that  premises  may  be  occupied  in  a 
certain  way,  or  some  other  fact  occur  without  prejudice  to  the 
insurance. 

A  representation,  in  the  law  of  insurance,  differs  from  a  war- 
ranty, in  that  it  is  not  a  part  of  the  contract.  If  made  after 
the  signing  of  the  policy  or  the  completion  of  the  contract,  it 
cannot  of  course  affect  it.  If  made  before  the  contract,  and 
with  a  view  to  effecting  insurance,  it  is  no  part  of  the  contract ; 
but  if  it  be  fraudulent,  it  makes  the  contract  void.     And  if  it 


WARRANTY  A  AD  REPRESENTATION. 


419 


be  false,  and  known  to  be  false  by  him  who  makes  it,  it  is  his 
fraud.  To  have  this  effect,  however,  it  must  be  material ;  and 
there  is  no  better  test  or  standard  for  this  than  the  question, 
whether  the  contract  would  have  been  made,  and  in  its  present 
form  or  on  its  actual  terms,  if  this  statement  had  not  been  made 
and  believed  by  the  insurers.  If  the  answer  is,  that  the  con- 
tract would  not  have  been  made  if  this  statement  had  not  been 
made,  it  is  material ;  otherwise,  not.  The  general  rule  is,  that 
the  statements  in  the  application  on  a  separate  sheet,  have  the 
effect  only  of  representations,  and  do  not  avoid  the  policy  unless 
void  in  a  material  point,  or  unless  the  policy  makes  them  speci- 
ally a  part  of  itself,  and  gives  them  the  effect  of  warranties.  A 
representation  may  be  more  certainly  and  precisely  proved  if 
in  writing ;  but  it  will  have  its  whole  force  and  effect  if  only 
oral. 

In  some  instances,  by  the  terms  of  the  policies,  any  mis 
representations  or  concealments  void  the  policy.  And  it  is 
held  that  the  parties  have  a  right  to  make  such  a  bargain,  and 
that  it  is  binding  upon  them  ;  and  the  effect  of  it  would  seem  to 
be  to  give  to  representations  the  force  and  influence  of  war- 
ranties. 

There  seems  to  be  this  difference  between  marine-policies 
and  fire-policies.  In  the  former,  a  material  misrepresentation 
avoids  the  policy,  although  innocently  made  ;  in  the  latter  it  has 
this  effect  only  when  it  is  fraudulent.  This  distinction  seems 
to  rest  upon  the  greater  capability,  and  therefore  greater  obli- 
gation, of  the  insurers  against  fire  to  acquaint  themselves  fully 
with  all  the  particulars  which  enter  into  the  risk.  For  they 
may  do  this  either  by  the  survey  and  examination  of  an  agent, 
or  by  specific  and  minute  inquiries.  If  a  warranty  is  broken, 
hcfwever  innocently,  it  avoids  all  policies,  whether  material  or 
not.  And  this  difference  between  a  warranty  and  a  representa 
tio?i  is  very  important. 

Concealment  is  the  converse  of  misrepresentation.  The 
insured  is  bound  to  state  all  that  he  knows  himself,  and  all  that 
it  imports  the  insurer  to  know,  for  the  purpose  of  estimating 
accurately  the  risk  he  assumes.  A  suppression  of  the  truth  has 
the   same  effect  as  an  expression  of  what  is  false.     And  the 


420 


FIRE  IXS  URA  NCE. 


rule  as  to  materiality  and  as  to  a  substantial  compliance  is  the 
same. 

Even  the  rumor  of  an  attempt  to  set  fire  to  a  neighboring 
building  should  be  communicated  ;  because  the  insurer  should 
be  informed  of  any  unusual  fact,  or  any  circumstance  relating  to 
the  building  materially  enhancing  the  risk. 

Insurers  must  be  understood  as  knowing  all  those  matters 
oi  common  information  that  are  as  much  within  their  reach  as  iii 
that  of  the  insured  ;  and  these  need  not  be  especially  stated. 
But  any  special  circumstance,  as  a  great  number  of  fires  in  the 
neighborhood,  and  the  probability  or  belief  that  incendiaries 
were  at  work,  should  certainly  be  communicated  ;  and  silence 
on  such  a  point — especially  if  the  place  of  business  of  the 
insurers  was  at  a  considerable  distance  from  the  premises — 
would  operate  as  a  fraud,  and  avoid  the  policy.  And  any  ques 
tions  asked  must  be  answered,  and  all  answers  must  be  as  full 
and  precise  as  the  question  requires.  If  there  were  a  provision 
in  the  policy  that  a  certain  fact,  if  existing,  must  be  stated, 
silence  in  reference  to  it  would  avoid  the  policy,  however  imma. 
terial  the  fact.  Concealment  in  an  answer  to  a  specific 
question  can  seldom  or  never  be  justified  by  showing  that  it  was 
not  material.  Thus,  in  general,  nothing  need  be  said  about 
title.  But  if  it  be  inquired  about,  full  and  accurate  answers 
must  be  made. 

Where  the  insurance  company  has,  by  the  terms  of  the 
policy,  a  lien  upon  or  interest  in  the  premises  insured,  to  secure 
the  premium  note,  here  it  is  obvious  that  any  concealment  of 
incumbrance  or  defect  of  title  would  operate  as  a  fraud,  and 
defeat  the  policy.  But  in  all  such  cases  it  is  probable  that 
specific  questions  are  put  respecting  the  estate  and  title  of  the 
insured. 

It  is  often  required  that  all  buildings  standing  within  a  cer- 
tain  distance  of  the  property  insured  shall  be  stated ;  but  this 
might  not  always  be  considered  as  applicable  to  personal  and 
movable  property.  Still,  an  insurance  of  chattels,  described  as 
in  a  certain  place  or  building,  would  be  held  to  amount  to  a 
warranty  that  they  should  remain  there  ;  or  rather  it  would  not 
cover  them  if  removed  into  another  place  or  building,  unless,  by 


THE  RISK  INCURRED  BY  THE  INSURERS. 


421 


some  appropriate  phraseology,  the  parties  expressed  their  inten- 
tion that  the  insured  was  to  be  protected  as  to  this  property 
wherever  it  might  be  situated.  It  is  not  uncommon  to  insure 
goods  that  are  in  course  of  transit,  against  fire ;  but  then  it  is 
usual  to  name  the  places  from  which  and  to  which  the  goods 
are  passing. 

SECTION  VI. 

THE    RISK    INCURRED    BY   THE   INSURERS. 

At  the  time  of  the  insurance,  the  property  must  be  in 
existence,  and  not  on  fire,  and  not  at  that  moment  exposed  to 
a  dangerous  fire  in  the  immediate  neighborhood  ;  because  the 
insurance  assumes  that  no  unusual  risk  exists  at  that  time. 

The  risk  taken  is  that  of  fire.  And  therefore  the  insurers 
are  not  chargeable  if  the  property  be  destroyed  or  injured  by 
the  indirect  effect  of  excessive  heat ;  or  by  any  effect  which 
stops  short  of  ignition  or  combustion,  when  this  heat  is  pur- 
posely applied,  and  the  injury  is  caused  by  the  negligence  of 
the  person  in  charge  of  it.  Where,  however,  an  extraordinary 
fire  occurs,  the  insurers  are  clearly  liable  for  the  direct  effects 
of  it,  as  where  furniture  or  pictures  are  injured  by  the  heat, 
although  they  do  not  actually  ignite. 

And  they  are  liable  for  the  injury  from  water  used  to  extin- 
guish the  fire;  and  for  injury  to  or  loss  of  goods  caused  by  their 
removal  from  immediate  danger  of  fire ;  but  not  if  removed 
from  a  mere  apprehension  from  a  distant  fire,  even  if  it  be 
reasonable ;  and  not  if  the  loss  or  injury  might  have  been 
avoided  by  even  so  much  care  as  is  usually  given  in  times  of 
such  excitement  and  confusion. 

In  some  instances,  the  policies  require  that  the  insured 
should  use  all  possible  diligence  to  preserve  their  goods  ;  and 
such  a  clause  would  strengthen  the  claim  for  injury  caused  by 
an  endeavor  to  save  them  by  removal.  So  the  insurers  are 
liable  for  injury  or  loss  sustained  by  the  blowing  up  of  build- 
ings to  arrest  the  progress  of  a  fire. 

Lightning  is  not  fire ;  and  if  property  be  destroyed  by 
lightning,  the  insurers  are  not  liable,  unless  there  was  also 
ignition  ;  or  unless  the  policy  expressly  insures  against  light- 
ning:. 


.22  F^^E  INSURANCE. 

An  explosion  caused  by  gunpowder  is  a  loss  by  fire  ;  not  so 
is  an  explosion  caused  by  steam, 

Wliether,  when  the  negligence  of  the  insured  or  his  servants 
is  to  be  considered  as  the  sole  or  direct  cause  of  the  fire  or  loss, 
the  insurers  can  be  held,  has  been  somewhat  considered.  And 
as  this  is  the  most  common  and  universal  danger,  and  the  very 
one  which  induces  most  jjersons  to  insure,  there  has  been  some 
disposition  to  say  that  no  measure  or  kind  of  mere  negligence 
can  operate  as  a  defence.  And  in  effect  this  is  almost  the  law. 
But  if  the  loss  be  caused  by  negligence  of  the  insured  himself, 
of  so  extremie  and  gross  a  character  that  it  is  hardly  possible  to 
avoid  the  conclusion  of  fraud,  the  defence  might  be  a  good  one, 
although  there  were  no  direct  proof  of  fraud.  That  the  fire 
was  caused  by  the  insanity  of  the  insured  should  be  no  defence. 

SECTION  VII. 

VALUATION. 

Valuation,  precisely  as  it  is  understood  in  a  marine  policy, 
seldom  enters  into  a  fire-policy, — never,  perhaps,  in  a  policy 
made  by  any  of  those  mutual  companies  who  now  do  a  very 
large  part  of  the  insurance  of  this  country.  And  quite  seldom 
is  a  building  valued  when  insured  by  a  stock  company.  If  a 
loss  happens,  whether  it  be  total  or  partial,  the  insurers  are 
bound  to  pay  only  so  much  of  the  sum  insured  as  v/ill  indemnify 
the  assured.  But,  as  care  is  always  taken — and  sometimes 
required  by  law — not  to  insure  upon  any  house  its  whole  value, 
it  seldom  happens,  and,  if  the  proper  previous  jDrecautions  are 
taken,  should  never  happen,  that  any  question  of  value  arises 
in  a  case  of  a  total  destruction  of  a  building  by  fire. 

But  mutual  companies  are  usually  forbidden  by  their  charter 
to  insure  more  than  a  certain  proportion  of  the  value  of  a  build- 
ing; and  this  requires  a  valuation  in  the  policy,  which  is  con 
elusive,  for  some  purposes,  against  both  parties.  Of  course,  the 
insurers  can  never  be  held  to  pay  more  than  the  sum  insured. 
And  if  their  charter  or  by-laws  permit  a  company  to  insure 
only  a  certain  proportion  of  the  value,  as  three-fourths, — on  the 
one  hand,  if  the  company  insure  more  than  that  proportion,  as 


ALIENATION.  423 

^3,500  on  property  valued  at  ^4,000,  they  are  held  to  pay  only 
^3,000,  and  the  assured  cannot  show  that  the  building  was 
really 'worth  more  than  $4,000;  and,  on  the  other  hand,  the 
valuation,  if  not  fraudulent,  is  conclusive  against  the  insurers 
if  the  building  is  destroyed,  and  they  cannot  show,  in  defence, 
that  the  building  was  worth  less. 

I  know  nothing  to  prevent  the  parties  from  making  a  valued 
policy,  if  they  see  fit  to  do  so,  although  this  has  been  questioned 
It  is  not  uncommon  for  companies  who  insure  chattels, — as  plate, 
pictures,  statuary,  books,  or  the  like, — to  agree  on  what  shall 
be  the  value  in  case  of  loss. 

Sometimes  the  policy  reserves  to  the  insurers  the  right  to 
have  the  valuation  made  anew  by  evidence,  in  case  of  loss. 
Then  if  a  jury  find  a  less  valuation,  the  insurers  pay  the  same 
proportion  of  the  new  value  which  they  had  insured  cf  the 
former  valuation. 

The  value  which  the  insurers  or  goods  must  pay  is  their 
value  at  the  time  of  the  loss.  And  it  has  been  held,  that  i\ 
fair  sale  at  auction,  with  due  precaution,  will  be  taken  to  settle 
that  value  after  the  fire,  provided  the  insurers  have  reasonable- 
notice  or  knowledge  that  the  auction  is  to  take  place. 

The  valuation  determines  the  amount  which  the  insurers 
must  pay  only  in  case  of  total  destruction.  If  the  building  is 
only  injured  by  fire,  the  insurers  may  either  repair  it,  or  pay 
the  cost  of  repairing  it. 

SECTION   VIII. 

ALIENATION. 

Policies  against  fire  are  personal  contracts  between  the 
insured  and  the  insurers,  and  do  not  pass  to  any  other  party, 
without  the  express  consent  of  the  insurers. 

It  is  essential  to  the  validity  and  efificacy  of  this  contract, 
that  the  insured  have  an  interest  in  the  property  when  he  is 
insured,  and  also  when  the  loss  takes  place  ;  for  otherwise  it  is 
not  his  loss,  and  he  can  have  no  claim  for  indemnity.  If, 
therefore,  he  alienates  the  whole  of  his  interest  in  the  property 
before  the  loss,  he  has  no  claim  ;  and  if  he  alienates  a  part, 
retaining  a  partial  interest,  he  has  only  a  partial  and  propor- 
tionate claim. 


424 


FIRE  INSURANCE. 


After  a  loss  has  occurred,  the  right  of  the  insured  to  indem- 
nity is  vested  and  fixed  ;  and  this  right  may  be  assigned  for 
value,  so  as  to  give  an  equitable  claim  to  the  assignee,  without 
the  consent  of  the  insurers. 

Policies  against  fire  contain  a  provision  that  an  assignment 
of  the  property,  or  of  the  policy,  shall  avoid  the  policy.  So, 
generally,  it  is  hardly  worth  while  to  inquire  what  right  an 
assignee,  without  consent,  would  acquire  at  common  law,  or  in 
equity,  where  there  is  no  such  provision. 

A  dissolution  of  the  partnership  before  loss,  and  a  division 
of  the  goods,  so  that  each  partner  owned  distinct  portions,  was 
held  to  be  in  violation  of  a  condition  against  "any  transfer  or 
change  of  title  in  the  property  insured." 

A  conveyance  by  one  insured,  intended  to  secure  a  debt, 
will  be  treated  in  a  court  of  equity  as  a  mortgage,  and  there- 
tore  it  does  not  terminate  the  interest  of  the  insured.  A 
contract  to  convey  is  not  an  alienation.  Nor  is  a  conditional 
sale,  where  the  condition  must  precede  the  sale,  and  is  not  yet 
performed.  Nor  is  a  mortgage,  not  even  after  breach,  and 
perhaps  entry  for  a  breach,  and  not  until  foreclosure.  Nor 
selling  and  immediately  taking  back.  Sometimes  alienation  by 
mortgage  is  directly  prohibited. 

If  several  estates  are  insured  in  one  policy,  and  one  or  more 
are  aliened  (or  conveyed  away),  the  policy  is  void  as  to  those 
only  which  are  aliened.  If  many  owners  are  insured  in  one 
policy,  a  transfer  by  one  or  more  to  strangers,  without  the  act 
or  concurrence  of  the  other  owners,  will  avoid  the  policy  for 
only  so  much  as  is  thus  transferred. 

In  practice,  care  should  be  taken  to  have  all  such  transfers 
regularly  made  and  notified,  and  the  consent  of  the  insurer 
obtained,  fully  authorized,  and  duly  indorsed  or  certified,  and 
all  the  rules  or  usages  of  the  insurers  in  this  respect  complied 
with. 

SECTION  IX. 


NOTICE    AND   PROOF. 


Where  the  policy  requires  a  certificate  of  the  loss,  the  pro 
duction  of  it  is  a  condition  precedent  to  any  claim  for  payment 


ADJUSTMENT  AND  LOSS.  425 

And  it  must  be  such  a  certificate  as  is  required ;  but  a  substan- 
tial compliance  with  its  requirements  is  sufficient.  So,  too,  if 
the  notice  is  to  be  given  fortJiwitJi,  there  must  be  no  unrea- 
sonable or  unnecessary  delay.  And  all  the  circumstances  of  the 
case  are  considered,  in  determining  whether  there  was  or  was 
not  due  diligence.  Where  a  certificate  is  required  to  be 
furnished  "as  soon  as  possible,"  it  is  still  sufficient  if  it  be 
furnished  within  a  reasonable  time.  But  Avhere  the  fire  took 
place  in  November,  and  the  account  of  loss  was  not  furnished 
till  the  March  following,  it  was  held  not  to  be  a  compliance 
with  the  conditions.  Generally,  this  is  a  question  for  the  jury. 
In  fire-policies,  as  the  premises  may  be  supposed  always 
open  to  the  inspection  of  the  agents  of  the  insurers,  a  general 
notice  of  the  fire  will  be  enough. 

SECTION  X. 

ADJUSTMENT    AND    LOSS. 

Insurers  against  fire  are  not  held  to  pay  for  loss  of  profits, 
gains  of  business,  or  other  indirect  and  remote  consequences  of  a 
loss  by  fire.  We  do  not  know,  however,  why  profits  may  not  be 
expressly  insured  against  fire,  where  it  is  not  forbidden  by,  or 
inconsistent  with,  the  charter  of  the  insurers. 

There  is  one  wide  difference  between  the  principle  of  adjust- 
ment of  a  marine  policy  and  of  a  fire-policy.  In  the  former,  if 
a  proportion  only  of  the  value  is  insured,  the  insured  is  con- 
sidered as  his  own  insurer  for  the  residue,  and  only  an  equal 
proportion  of  the  loss  is  paid.  Thus,  if,  on  a  ship  valued  at 
$10,000,  $5,000  be  insured,  and  there  is  a  loss  of  one-half,  the 
insurers  pay  only  one-half  of  the  sum  they  insure,  just  as  if 
some  other  insurer  had  insured  the  other  $5,000.  But  in  a  fire- 
policy,  the  insurers  pay  in  all  cases  the  whole  amount  which  is 
list  by  fire,  provided  only  that  it  does  not  exceed  the  amount 
which  they  insure. 

Most  of  the  fire-policies  used  in  this  country  give  the  insurers 
the  right  of  rebuilding  or  repairing  premises  destroyed  or 
injured  by  fire,  instead  of  paying  the  amount  of  the  loss.  If, 
under  this  power,  the  insurers  rebuild  the  house  insured,  at  a 


426  FIRE  INSURANCE 

less  cost  than  the  amount  they  insure,  this  does  not  exhaust 
their  liability ;  they  are  now  insurers  of  the  new  building  for 
the  difference  between  its  cost  and  the  amount  they  have 
insured.  And  if  the  new  building  burns  down,  or  is  injured 
while  the  policy  continues,  the  insured  may  claim  so  much  as, 
added  to  the  cost  already  incurred,  shall  equal  the  sum  for 
which  he  was  insured. 

It  may  be  important  to  add,  that,  under  our  common  mutual 
policies,  the  insured  will  also  be  liable  for  assessments  for  losses 
after  the  destruction  of  his  building  by  fire,  during  the  whole 
term  of  the  policy. 

There  is  no  rule  in  fire-insurance  similar  to  that  which  makes 
a  deduction,  in  marine-insurance,  of  one-third,  new  for  old. 
Still,  the  jury,  to  whom  the  whole  question  of  damages  is  given, 
are  to  inquire  into  the  greater  value  of  a  proposed  new  build- 
ing, or  of  a  repaired  building,  and  assess  only  such  damages  as 
shall  give  the  insured  complete  indemnity. 

Where  insurers  reserved  a  right  to  replace  articles  destroyed, 
if  the  insured  refused  to  permit  them  to  examine  and  inventory 
the  goods  that  they  might  judge  what  it  was  expedient  for 
them  to  do,  such  conduct  on  the  part  of  the  insured  would  be 
evidence  to  the  jury  of  great  weight,  to  prove  an  overstate- 
ment of  loss. 

I  have  not  thought  it  would  be  useful  to  give  Forms  of 
various  policies.  Applicants  never  make  them,  as  they  are 
always  furnished  by  the  insurance  companies ;  each  one  having 
its  own  form,  and  using  no  other.  But  the  following  Forms,  of 
immediate  notice  of  loss,  of  a  later  and  fuller  statement  under 
oath,  with  a  magistrate's  certificate,  and  assignments  of  policies, 
may  be  found  useful.  They  must  be  all  adapted,  in  practice,  to 
the  peculiar  circumstances  of  each  case. 

(102.) 
To  the Fire-insurance  Company. 

Take  Notice,  That  on  the  day  of  inst.  (or  last)  a 

fire  broke  out  in  the  building  No.  in  Street,  in  the  city  of 

{or  otherwise  describe  the  location),  v^htr&on  I  am  insured  by  you,  by  your 
policy,  No.  the  sum  of  dollars.     I   have    not  yet 

learned  and  do  not  know,  in  what  way  the  fire  was  caused  ;  but  as  soon  as  I 


FORMS  USED  IN  FIRE  INSURANCE. 


427 


am  able,  I  will  give  you  further  information  on  the  subject.  {If  the  insured 
or  his  agent  knows,  or  has  reasonable  cause  for  supposing,  how  the  fire  was 
cAught,  he  should  say  so,  and  state  what  particulars  he  can.) 

The  house  was  wholly  {or  partially)  destroyed  by  fire  ;  and  I  shall  claim 
a  payment  from  you  under  your  policy. 

Written  and  sent  this  day  of  in  the  year 

{Signature)      {Seal.) 

Wit7iess  to  the  signature  and  sending. 

{Signature  of  Witness) 

Some  insurance  companies,  and,  indeed,  the  express  provi- 
sions of  some  policies,  require  that  a  sworn  statement  of  the* 
facts  and  circumstances  of  the  loss,  and  the  particulars  of  the 
claim,  be  given  to  the  insurance  company,  with  the  certificate 
of  a  magistrate.  I  do  not  know  that  this  course  might  not  be 
always  prudent.  The  form  in  which  it  is  done  must  vary  in 
each  case,  and  be  adapted  to  the  peculiarities  of  that  case.  But 
the  following  Form  will  generally  be  a  safe  guide. 

(103.) 
To  the Insurance  Company, 

Whereas  the  said  Insurance  Company,  by  their  policy  numbered 

,  and  dated  on  the  day  of  in  the  year 

caused  me  to  be  insured  in  the  sum  of  dollars  against  loss  or 

damage  by  fire  to  the  following-described  building ;  that  is  to  say  {here 
describe  or  designate  the  builditig  suffi.cie7itly  to  show  clearly  where  ajidwhot 
it  was,  taking  the  description  from  the  policy,  but  not  copying  it  at  length). 
Now,  I,  the  said  {name  of  the  «jj«/v^)  having  been  solemnly  sworn, 

do  depose  and  say, — 

1.  That  on  the  day  of  now  last  p^st,  between  the 
hours  of  and  a  fire  broke  out  in  said  building,  whereby  the  same 
was  greatly  damaged  {or  destroyed),  and  the  said  fire  was,  according  to  my 
best  knowledge  and  belief,  caused  h')-{he7-e  set  forth  the  cattses  so  far  as  they 
arc  ktiown,  or  supposed  oti  reasonable  grou7ids),  and  I  aver  that  the  said  fire 
was  not  caused  by  me.  or  by  my  design  and  occurrence,  or  with  anv  previous 
knowledge  on  my  part,  or  in  any  manner  attributable  to  me  or  to  my  agency; 
direct  or  indirect. 

2.  That  I  was  interested  in  the  said  property  in  the  following  manner; 
that  is  to  say  {here  say  whether  the  i7isured  ow7ied  the  p/'operty  himself,  or 
was  a  te7ia7it  of  it,  or  a  la7idlord,  or  mortgagor  or  i7tortgagce,  or  trtistee, 
or  how  otherwise  he  was  interested). 

3.  That  there  was  no  other  insurance  against  fire  of  the  said  property 
{or,  if  there  was  a7ty  other,  state  what  it  was). 


428 


FIRE  INSURANCE. 


4.  That  tlic  occupants  of  the  building  at  the  time  of  the  fire  were,  so  far 
as  is  known  to  me,  the  following  persons  {set forth  the  iiat/ies  of  the  occu- 
pants, the  parts  of  the  building  occtipicd  by  each  one,  and  the  purpose  for 
•which  it  was  occupied ). 

5.  That  the  actual  value  of  the  building  in  dollars  at  the  time  of  the 
fire,  was,  according  to  my  best  belief  and  judgment,  dollars. 
(//"  the  property  was  personal,  as  goods,  fnrnitnre,  or  the  like,  say,  as  may 
appear  by  the  schedjtle  annexed.) 

6.  That  the  whole  of  said  value  was  lost  by  the  fire  ;  and  being  more 
than  the  sum  insured  thereon,  I  now  claim  of  said  insurance  company  said 
sum  of  dollars.     {Or  if  the  building  luas  injured,  and  not 

'destroyed,  then  say  that  so  much  of  the  value — stating  the  amount — of  said 
building  was  lost  by  the  fire,  inasmuch  as  the  building,  if  repaired,  cannot 
be  restored  to  as  good  condition  as  before,  for  a  less  amount  than  that  sum.) 

Witness  my  hand  at  this  day  of 

in  the  year 

{Signature.) 

{Certificate  to  be  appended  to  the  foregoing.) 

State  of  ,   ') 

>  ss. 
County  of  ,  ) 

I  {name  of  the  magistrate)  a  justice  of  the  peace  in  and  for  said 

county  {or  what  else  may  be  his  office),  dwelling  near  to  the  property  above 
mentioned,  in  the  town  {or  city)  of  have  investigated  the 

circumstances  attending  the  said  fire,  and  am  personally  acquainted  with  the 
said  {name  of  itisur-ed),  whose  character  is  good  ;  and  I  believe  that 

the  above  statement  to  which  the  said  {name  of  ijisured)  has  made 

oath  in  my  presence  is  true  ;  that  the  loss  cannot  be  imputed  to  fraud  or  mis- 
;onduct  on  his  part ;  and  that  he  has  suffered  by  the  fire  a  loss  of 

dollars.     I  am  not  in  any  way  interested  in  the  said  property,  or  in 
the  said  policy,  or  any  claim  under  the  same. 

In  Witness  of  all  of  which  I  have  hereunto  set  my  hand  and  my  seal  {of 
office,  if  he  has  an  official  seal),  at  this  day  of 

in  the  year 

{Signature  of  Magistrate.)    {Seal.) 

(104.) 
Assignment  of  a  Policy  to  be  indorsed  Thereon. 

I  {name  of  insured)  insured  by  the  within  policy,  in  consideration 

of  a  dollar  paid  to  me  by  {name  of  theassignec)2sv(\.  for  other  good  con- 

siderations, do  hereby  assign,  and  transfer  to  the  said  {name  of  the 

assignee)  this  policy,  together  with  all  the  right,  title,  interest,  and  claim  which 
I  now  have  or  hereafter  may  have,  in,  to,  or  under  the  same. 


FORMS  USED  IX  FIRE  INSURANCE. 


429 


"Witness  my  hand  this  day  of  in  the  year 

(^Signature^ 
( Witness^ 

It  is  always  best  to  write  this  assignment  on  the  policy  itself', 
but  it  may  sometimes  happen  that  this  is  not  convenient  or  pos- 
sible ;  the  insured  who  wishes  to  make  the  assignment  not  hav- 
ing the  policy  within  his  possession  or  easy  reach.  Then  tha 
assured  may  use  the  following  Form  : 

(105.) 

"Whereas,  the  Insurance  Company,  by  the  policy,  numbered 

and  dated  on  day  of  in  the  year 

caused  me  to  be  insured  against  loss  or  damage  by  fire  on  a  certain  buildmg, 
being  {designate  the  building  by  location  or  otkerwise)  in  the  sum  of 

dollars ;  now,  I  the  said  {name  of  the  insured),  in  consideration  of 
one  dollar  paid  to  me  by  {name  of  the  assignee)  and  for  other  good  consid 
erations,  have  transferred  and  assigned,  and  do  by  these  presents  transfer 
and  assign  unto  the  said  {name  of  the  assignee)  the  said  policy  of  insurance, 
and  all  the  right,  title,  interest,  or  claim,  which  I  now  have  or  ever  may  have, 
in,  to,  or  under  the  same,  and  in  and  to  any  sum  of  money  which  now  is  or 
shall  ever  be  payable  thereon. 

Witness  my  hand  this  day  of  m  the  year 

{Signature.) 
{Witness.) 

If  the  policy  be  on  goods,  or  if  it  be  not  a  fire-policy,  but  ^ 
marine-policy,  or  a  life-policy,  then  the  assignment  must  be 
made  to  conform  to  the  facts. 

It  is  ahvays  best  to  get  the  assent  of  the  insurance  company 
to  the  transfer  before  it  is  made.  And  always  the  assignment, 
when  made,  should  be  exhibited  without  loss  of  time,  to  them  or 
to  their  agent  authorized  to  give  their  assent,  and  this  assent  to 
the  assignment  be  obtained  and  written  upon  the  policy,  or,  if 
that  cannot  conveniently  be,  on  the  assignment,  and  in  the 
books  of  the  insurance  company. 


^^Q  LIFE  INSURANCE. 


CHAPTER  XXVIII. 

LIFE-INSURANCE. 


SECTION  I. 

THK   PURPOSE   AND   METHOD    OF    LIFE-INSURANCE. 

If  a  insures  B  a  certain  sum  payable  at  B's  death  to  B's 
representatives,  we  have  only  the  insurer  and  insured,  as  in 
other  cases  of  insurance.  But  if  A  insures  B  a  sum  payable  to 
B  or  his  representatives  on  the  death  of  C,  although  C  is  often 
said  to  be  insured,  this  is  not  quite  accurate  ;  more  properly,  B 
is  the  ittsiired  party  and  C  is  the  life-insured. 

Life-insurance  is  usually  effected  in  this  country  in  a  way 
quite  similar  to  that  of  fire-insurance  by  our  mutual  companies. 
That  is,  an  application  must  be  first  made  by  the  insured ;  and 
to  this  application  queries  are  annexed  by  the  insurers,  which 
inquire,  with  great  minuteness  and  detail,  into  everything  which 
can  affect  the  probability  of  life.  These  must  be  answered 
fully  ;  and  if  the  insurer  be  other  than  the  life-insured,  there  are 
usually  questions  for  each  of  them  There  are  also,  in  some 
cases,  questions  which  should  be  answered  by  the  physician  of 
the  life-insured,  and  others  by  his  friends  or  relatives ;  or  othei 
means  are  provided  to  have  the  evidence  of  the  physician  and 
friends. 

These  questions  are  not  precisely  the  same  in  the  forms 
given  out  by  any  two  companies  ;  and  we  do  not  speak  of  them 
in  detail  here.  The  rules  as  to  the  obligation  of  answering  them, 
and  as  to  the  sufficiency  of  the  answers,  must  be  the  same  in 
life-insurance  that  we  have  already  stated  in  the  chapters  on 
Fire  and  Marine  Insurance ;  or  rather  must  rest  upon  the  same 
principles.  And  the  same  rules  and  principles  of  construction 
therein  set  forth  would  doubtless  be  applied  to  the  question 
whether  a  contract  had  been  made,  or  at  what  time  it  went  into 
effect. 


THE  PREMIUM.  43 1 

SECTION  II. 

THE    PREMIUM. 

If  the  insurance  be  for  one  year  only,  or  less,  the  premium 
fs  usually  paid  in  money,  or  by  a  note,  at  once.  If  for  more 
than  a  year,  it  is  usually  payable  annually.  But  it  is  common  to 
provide  or  agree  that  the  annual  payment  may  be  made  quar- 
terly, with  interest  from  the  day  when  the  whole  is  due.  Notes 
are  usually  given  ;  but  if  not,  the  whole  amount  would  be  consid- 
ered due.  If  A,  whose  premium  of  $100  is  payable  for  1878  on 
the  ist  day  of  January,  then  pays  $25,  and  is  to  pay  the  rest  quar- 
terly, but  dies  on  the  ist  of  February,  the  $75  due,  with  interest 
from  the  ist  of  January,  would  be  deducted  from  the  sum 
insured.  If  the  policy  provides  that  the  risk  shall  "  terminate 
in  case  the  premium  charged  shall  not  be  paid  in  advance  on  or 
before  the  day  at  noon  on  which  the  same  shall  become  due  and 
payable,"  and  the  day  of  payment  falls  on  Sunday,  the  premium 
is  not  payable  until  Monday,  although  the  assured  dies  on  Sun- 
day afternoon. 

Provision  is  sometimes  made  that  a  part  of  the  premium  shall 
be  paid  in  money,  and  a  part  in  notes,  which  are  not  called 
in  unless  needed  to  pay  losses.  The  greater  the  accommoda 
tion  thus  allowed,  the  more  convenient  it  is,  obviously  to  the 
insured,  but  the  less  certain  will  he  be  of  the  ultimate  payment 
of  the  policy,  because,  in  the  same  degree,  the  fund  for  the  pay- 
ment consists  only  of  such  notes,  and  not  of  payments  actually 
made  and  invested.  There  is  a  great  diversity  among  the  life- 
insurance  companies  in  this  respect.  But  even  the  strictest,  or 
those  which  require  that  all  the  premiums  shall  be  paid  in  money, 
usually  provide  also  that  an  amount  may  remain  overdue,  with- 
out prejudice,  which  does  not  exceed  a  certain  proportion — say 
one-half  or  one-third — of  the  money  actually  paid  in  on  the  policy. 
This  is  considered,  under  all  ordinary  circumstances,  safe  for. 
the  company,  because  every  policy  is  worth  as  much  as  this  to 
the  company.  Or,  in  other  words,  it  would  always  be  profitable 
for  the  company  to  obtain  a  discharge  of  its  obligation  on  a 
policy,  by  repaying  the  insured  so  small  a  proportion  of  what 
has  been  received  from  him. 


432 


LIFE  INSURANCE. 


Taking  a  note  would  certainly  be  a  waiver  of  immediate  pay 
ment,  if  not  itself  a  payment. 

The  premiums,  after  the  first,  must  be  paid  on  the  days  on 
which  they  fall  due.  If  no  hour  be  mentioned,  then  it  is 
believed  that  the  insured  would  have  the  whole  day,  even  to 
midnight.  It  is  possible,  however,  that  he  might  be  restricted 
to  the  usual  hours  of  business,  and  perhaps  even  to  those  in 
which  the  office  of  the  insurers  is  open  for  business. 

Practically,  the  utmost  care  is  requisite  on  the  part  of  the 
assured,  to  pay  his  premium  as  soon  as  it  is  due ;  and  it  is  a 
wise  precaution  to  pay  it  a  little  before.  This  is  the  only 
proper  and  safe  course.  But  we  believe  it  to  be  not  unusual 
for  the  insurers  to  accept  the  premium  if  offered  them  a  few 
days  after,  and  continue  the  policy  as  if  it  were  paid  in  season, 
provided  no  change  in  the  risk  has  occurred  in  the  mean  time. 

And  sometimes  the  rules  of  the  company,  and  in  some  States 
the  statutes,  provide,  that,  if  a  policy  be  defeated  by  a  non-pay- 
ment of  the  premium,  the  insured  does  not  lose  all  that  he  has 
paid  ;  but  a  certain  proportion  of  the  value  which  the  policy 
then  had  shall  be  paid  to  him. 

The  time  of  the  death  is  sometimes  very  important.  If  the 
policy  be  for  a  definite  period,  it  must  be  shown  that  the  death 
occurs  within  it.  If  there  were  an  insurance  on  a  man's  life  for 
a  year,  and  some  short  time  before  the  expiration  of  the  term 
he  received  a  mortal  wound,  of  which  he  died  one  day  after  the 
year,  the  insurer  would  not  be  liable.  And  the  terms  of  the 
policy  may  possibly  make  it  necessary  to  determine  which  of 
two  persons  lived  longest ;  as  if  a  sum  were  insured  on  the  joint 
lives  of  two  persons,  to  be  paid  to  the  representatives  of  the 
survivor. 

SECTION  III. 

THE   RESTRICTIONS    AND   EXCEPTIONS    IN    LIFE-POLICIES. 

Our  policies  usually  contain  certain  restrictions  or  limita- 
tions as  to  place  ;  the  life-insured  (he  whose  life  is  insured  for  his 
own  or  another's  benefit)  not  being  permitted  to  go  beyond  cer- 
tain limits,  or  to  certain  places.  But  there  is  nothing  to  prevent 
a  bargain  permitting  the  life-insured  to  pass  beyond  these  bounds, 


RESTRICTIONS  AXD  EXCEPTIONS  IN  LIFE-POLICIES.     433 

either  in  consideration  of  new  and  further  payments,  or  of  the 
common  premium. 

So  certain  trades  or  occupations,  as  of  persons  engaged  ia 
making  gunpowder,  or  of  engineers  or  firemen  about  steam- 
engines,  are  considered  extra-hazardous,  and  as  therefore  pro- 
hibited, or  requiring  an  extra  premium. 

The  exception,  however,  which  has  created  most  discussion, 
is  that  which  makes  death  by  suicide  an  avoidance  of  the  poHcy. 
The  clause  respecting  duelHng  is  plain  enough  ;  and  no  one  can 
die  in  a  duel  without  his  own  fault.  But  it  is  otherwise  with 
regard  to  self-inflicted  death.  This  may  be  voluntary  and  wrong- 
ful, or  the  result  of  insanity  and  disease,  for  which  the  suffering 
party  should  not  be  held  responsible. 

The  general  principles  of  the  law  of  contracts,  and  of  the  law 
of  insurance  particularly,  would  lead  to  the  conclusion  that 
"death  by  his  own  hands,"  but  without  the  concurrence  of  a 
responsible  will  or  mind,  would  not  discharge  the  insurers, 
without  a  positive  provision  to  that  effect.  We  should  put 
such  a  death  on  the  same  footing  with  one  resulting  from  a 
mere  accident,  brought  about  by  the  agency,  but  without  thf; 
intent,  of  the  life-insured.  As  if  poison  were  sent  to  him  b/ 
mistake  for  medicine,  and  he  swallowed  it  under  the  same  mis- 
take. 

Much  question  has  been  made,  zuhettB.  man  may  be  believed 
to  be. dead,  simply  because  nothing  is  known  about  him,  or  has 
been  known  for  a  long  period.  But  there  is  not  and  cannct 
be  any  other  presumption  of  law  on  the  subject  than  that,  after 
a  certain  period  of  absence  and  silence,  there  is  a  presumption 
of  death  ;  and  seven  years  has  been  mentioned  in  England  and 
in  this  country  as  this  period,  and  even  sanctioned  by  legisla- 
tion in  New  York.  But  all  questions  of  this  kind  we  regard  as 
pure  questions  of  fact.  Whichever  party  rests  his  case  upcti 
the  death  or  the  life  of  a  certain  person,  at  a  certain  time,  muit 
satisfy  the  jury  upon  this  point  by  such  evidence  as  may  be 
admissible  and  sufficient. 
28 


434  Z//-^£  I.XSi'RANCE. 

SECTION  IV. 

THE  INTEREST  OF  THE  INSURED. 

Every  one  insured  in  any  way  must  have  an  interest  in  the 
subject-matter  of  the  insurance.  A  person  may  effect  insurance 
on  his  own  Hfe  in  the  name  of  a  creditor,  for  a  sum  beyond  the 
amount  of  the  debt,  the  balance  to  enure  to  his  family,  and  the 
policy  will  be  valid  for  the  whole  amount  insured.  Any  one 
may  insure  his  own  life  ;  but  if  the  insured  and  the  life-insured 
are  not  the  same,  that  is,  if  the  insured  be  insured  on  some  other 
life  than  his  own,  interest  must  be  shown.       « 

A  father  has  an  insurable  interest  in  the  life  of  his  minor 
son.  And  the  general  rule  is,  that  any  substantial  pecuniary 
interest  is  sufficient,  although  not  strictly  legal  nor  definite. 
This  has  been  held  in  the  case  of  a  sister  dependent  on  a 
brother  for  support  ;  and  the  rule  would  be  held  to  apply  not 
only  to  all  relations,  but  where  there  was  no  relationship,  il 
there  were  a  positive  and  real  dependence.  That  is,  any  one 
may  insure  a  sum  on  the  life  of  any  other  person  on  whom  he 
or  she  really  depends  for  support  or  for  comfort.  And  gener- 
ally, it  is  said  to  be  enough,  if,  according  to  the  ordinary  course 
of  events,  pecuniary  loss  or  disadvantage  will  naturally  and 
probably  result  from  the  death  of  the  one  whose  life  is  insured. 

So  an  existing  debt  gives  the  creditor  an  insurable  interest 
in  the  life  of  a  debtor.  But  if  the  debt  be  not  founded  on  a  legal 
consideration,  it  does  not  sustain  the  policy.  And  if  the  debt 
be  paid  before  the  death  of  the  debtor,  the  insurers  are  dis- 
charged. 

SECTIOX  V. 

THE   ASSIGNMENT   OF    A    LIFE-POLICY. 

Life-policies  are  assignable  at  law,  and  are  very  frequently 
assigned  in  practice.  And  the  assignee  of  a  policy  is  entitled 
on  the  death  of  the  party  insured,  to  recover  the  full  sum 
insured  without  reference  to  the  amount  of  the  consideration 
paid  by  him  for  the  assignment.  A  large  proportion  of  the 
policies  which  are  effected  are  made  for  the  purpose  of  assign- 
ment;  that  is,  for  the  purpose  of  enabling  tlr^  insured  to  give 


WARRANTY,  REPRESENTATION,  ETC.  435 

this  additional  security  to  his  creditor.  If  the  rules  of  the  com- 
pany or  the  terms  of  the  policy  refer  to  an  assignment  of  it,  they 
are  binding  on  the  parties.  On  the  one  hand,  an  assignment 
would  operate  as  a  discharge  of  the  insurers,  provided  a  rule  or 
expressed  provision  gave  this  effect  to  the  assignment.  And, 
on  the  other,  if  the  agreement  were  that  the  policy  should  con- 
tinue in  favor  of  the  assignee,  even  after  an  act  which  discharged 
it  as  to  the  insured  himself, — as,  for  example,  his  suicide, — the 
insurers  would  be  bound  by  it. 

It  is  an  important  question  what  constitutes  an  assignment. 
The  general  answer  must  be,  any  act  distinctly  importing  an 
assignment.  And,  therefore,  a  delivery  and  deposit  of  the  pol- 
icy, for  the  purpose  of  assignment,  will  operate  as  such,  without 
a  formal  written  assignment.  So  will  any  transaction  which 
gives  to  a  creditor  of  the  insured  a  right  to  payment  out  of  the 
insurance. 

It  seems,  however,  that  delivery  is  necessary.  And  where 
an  assignment  was  indorsed  on  the  policy,  and  notice  given  to 
the  insurer,  but  the  policy  remained  in  the  possession  of  the 
insured,  it  was  held  that  there  was  no  assignment.  Where, 
however,  the  assignment  is  by  a  separate  deed,  which  is  duly 
executed  and  delivered,  this  is  an  assignment  of  the  policy, 
without  actual  delivery  of  the  policy  itself. 

SECTION  VI. 

WARRANTY,  REPRESENTATION,  AND    CONCEALMENT. 

The  general  principles  on  this  subject  are  the  same  which 
we  have  already  stated  in  reference  to  other  modes  of  insurance. 
In  life-policies,  however,  the  questions  which  must  be  answered 
are  so  minute,  and  cover  so  much  ground,  that  difficulty  seldom 
arises  except  in  relation  to  the  answers.  One  advisable  precau- 
tion is  for  the  answerer  to  discriminate  carefully  between  what 
he  knows  and  what  he  believes.  If  he  says  simply  "yes"  or 
"  no,"  or  gives  an  equivalent  answer,  this  is  in  most  cases  a 
strict  warranty,  and  avoids  the  policy  if  there  be  any  material 
mistake  in  the  reply.  But  where  the  answerer  adds  the  words 
"  to  the  best  of  my  knowledge  and  belief,"  he  warrants  only  the 


436  r^lFE  INSURANCE. 

fact  of  his  belief,  or,  in  other  words,  nothing  but  his  own  entire 
honesty. 

The  cases  which  turn  upon  the  answers  to  the  questions  are 
very  numerous  ;  but  they  necessarily  rest  upon  the  especial 
facts  of  each  case,  and  hardly  permit  that  general  rules  shovild 
be  drawn  from  them.      Some,  however,  may  be  stated. 

The  first  is,  that  perfect  good  faith  should  be  observed.  The 
want  of  it  taints  a  policy  at  once,  and  the  presence  of  it  goes  far 
to  protect  one.  Thus,  where  the  life-insured  was  beginning  to 
be  insane,  but  was  wholly  unconscious  of  it,  the  policy  was  not 
vitiated  by  the  conceah-nent,  although  two  doctors  in  attendance 
upon  him  knew  how  the  case  stood. 

Most  of  the  policies  of  the  present  day  provide  that  the 
policy  is  made  on  the  faith  of  the  statem.ents  in  the  applica- 
tion for  insurance  with  the  stipulation,  and  that,  if  they  shal'. 
be  found  in  any  respect  untrue,  the  policies  shall  be  avoided 
Then  the  stipulations  are  considered  as  warranties,  and  if  untrue, 
even  in  a  point  immaterial  to  the  risk,  avoid  the  policies. 

There  is  a  warranty,  or  statement,  usually  making  a  part  of 
nearly  all  life-policies  ;  it  is  that  the  life  insured  is  in  good 
health.  But  this  does  not  mean  perfect  health,  or  freedom 
from  all  symptoms  or  seeds  of  disease.  It  means  reasonably 
good  health,  and  loose  as  this  definition,  or  rule,  may  be,  it 
would  be  difficult  to  give  it  any  other.  And  if  a  jury  on  the 
whole  are  satisfied  that  the  constitution  of  one  warranted  to  be 
"  in  good  health  "  is  radically  impaired,  and  the  life  made  unusu- 
ally precarious,  there  is  a  breach  of  the  warranty,  although  no 
specific  disease  is  shown  which  must  have  that  effect.  On  the 
other  hand,  this  warranty  is  not  broken  by  the  presence  of  a  dis- 
ease, if  that  be  one  which  does  not  usually  tend  to  shorten  life 
(in  one  English  case  dyspepsia  was  said  to  be  such  a  disease), 
unless  it  were  organic,  or  had  increased  to  that  extreme  degree 
as  to  be  of  itself  dangerous. 

Consumption  is  the  disease  which  is  most  feared  in  this 
country,  as  well  as  in  England.  And  the  questions  which  relate 
to  the  symptoms  of  it,  as  spitting  of  blood,  cough,  and  the  like,  are 
exceedingly  minute.  But  here,  also  there  must  be  a  reasonable 
construction  of  the  answers.    Thus,  if  spitting  of  blood  be  posi- 


WAI^J^ANTV,  REPRESENTATIOiV,  ETC.  437 

lively  denied,  tliere  may  be  no  falsification  in  fact,  though  liter- 
ally speaking  the  life-insured  may  have  spit  blood  many  times, 
as  when  a  tooth  was  drawn,  or  from  some  accident.  If  there 
be  an  action  on  the  policy,  and  the  insurers  rest  their  defence 
on  any  falsification  of  this  kind,  the  question  usually  put  to  the 
jury  is,  Was  the  party  affected  by  any  of  these  or  similar  symp- 
toms, in  such  wise  that  they  indicated  a  disorder  tending  to 
shorten  life?  And  any  symptom  of  this  kind,  however  slight, — 
as  a  drop  or  two  of  blood  having  ever  flowed  from  inflamed  or 
congested  lungs, — should  be  stated.  Statements  materially 
untrue  on  these  points  avoid  the  policy,  although  the  insured, 
at  the  time  of  his  application,  did  not  believe  that  he  had  any 
pulmonary  disease,  and  the  statement  made  by  him  was  not 
iiitentionally  false,  but,  according  to  his  belief,  true. 

The  insurers  always  ask  who  is  the  physician  of  the  life- 
insured  that  they  may  make  inquiries  of  him  if  they  see  fit. 
.A.nd  his  name  must  be  stated  fully  and  accurately.  It  is  not 
(inough  to  give  the  name  of  the  usual  attendant ;  but  every 
jihysician  really  consulted  should  be  named,  and  every  one  con- 
i'ulted  as  a  physician,  although  he  is  an  irregular  practitioner  or 
ijuack. 

If  the  warranty  be  that  the  life-insured  is  a  person  of  sober 
and  temperate  habits,  it  has  been  held,  in  an  action  on  such  a 
policy,  that  the  jury  are  not  to  inquire  whether  his  habits  of 
drinking  are  such  as  might  injure  his  health  ;  for  if  he  has  any 
"habits  of  drinking,"  this  would  discharge  the  insurers,  because 
they  have  a  perfect  right  to  say  that  they  will  insure  only  those 
who  are  temperate.  But  it  may  be  answered,  that  although  the 
insurers  have  this  right,  and  there  may  be  good  reasons  why  this 
should  be  the  general  practice,  yet  unless  they  use  the  word 
"abstinence,"  or  something  equivalent,  they  have  no  right  to 
say  that  any  one  is  not  "temperate"  who  does  not  drink  enough 
to  affect  his  health  ;  for  as,  generally,  all  intemperance  must 
affect  health  injuriously,  if  there  be  no  such  injury,  the  presump 
tion  would  be  that  there  was  no  intemperance  ,  and  there  is 
clearly  a  broad  distinction  between  temperance  and  total  absti- 
nence. 

An  answer,  "not  subject  to  fits,"   is  not  necessarily  falsi- 


.^3  Z//7:"  INSURANCE. 

fled  by  the  fact  that  the  life-insured  has  had  one  or  more  fits. 
But  if  the  question  had  been,  "  Have  you  ever  had  fits  ?  "  then 
it  is  said  that  any  fit  of  any  kind,  and  however  long  before, 
must  be  stated.  But  if  a  man  had  a  fit  when  a  young  child, 
and  forgot  to  mention  it,  or  considered  it  wholly  unimportant, 
and  it  had  nothing  to  do  with  his  state  of  health,  it  would  hardly 
be  held  a  falsification  which  would  avoid  the  policy. 

As  there  is  always  a  general  question  as  to  any  facts  affect- 
ing health  not  particularly  inquired  of,  a  concealment  of  such  a 
fact  goes  to  a  jury,  who  are  to  judge  whether  the  fact  was  mate- 
rial, and  whether  the  concealment  were  honest.  As  when  a  life- 
insured  was  a  prisoner  for  debt,  and  so  without  the  benefit  of 
air  and  recreation,  and  this  was  not  told ;  and  where  a  woman 
whose  life  was  insured  had  become  the  mother  of  a  child  under 
disgraceful  circumstances  some  years  before,  and  this  fact  was 
concealed,  the  plaintiff  was  non-suited. 

If  the  policy,  and  the  papers  annexed  or  connected,  put  no 
limits  on  the  location  of  the  life-insured,  he  may  go  where  he 
will.  But  if,  when  applying  for  insurance,  he  intends  going  to 
a  place  of  peculiar  danger,  and  this  intention  is  wholly  withheld, 
it  would  be  a  fraudulent  concealment. 

If  facts  be  erroneously  but  honestly  misrepresented,  and  the 
insurers,  when  making  the  policy,  knew  the  truth,  the  error  doe.s 
not  affect  the  policy.  Nor  does  the  non-statement  of  a  fact 
which  diminishes  the  risk. 

If  upon  a  proposal  for  a  life  insurance,  and  an  agreement, 
thereon,  a  policy  be  drawn  up  by  the  insurers  and  presented  to 
the  insured  and  accepted  by  them,  which  differs  from  the  terms 
of  the  agreement,  and  varies  the  rights  of  the  parties  concerned, 
equity  will  interfere  and  deal  with  the  case  on  the  footing  of 
this  agreement,  and  not  of  the  policy.  But  it  may  be  shown  by 
evidence  and  circumstances,  that  it  was  intended  by  the  insurers 
to  vary  the  agreement,  and  propose  a  different  policy  to  the 
insured,  and  that  this  was  understood  by  the  insured,  and  the 
policy  so  accepted. 


INSURANCE  AGAINST  ACCIDENT,  ETC.  439 

SECTION  VII. 

iJXSURAXCE  AGAINST  ACCIDENT,  DISEASE,  AND    DISHONESTY  OF  SERVANTS. 

Of  late  years  both  of  these  forms  of  insurance  have  come 
into  practice,  but  not  so  long  or  so  extensively  as  to  require 
that  we  should  speak  of  them  at  length.  In  general,  it  must 
be  true,  that  the  principles  already  stated  as  those  of  insur. 
ance  against  marine  peril,  or  fire,  or  death,  must  apply  to 
these  other — and,  indeed,  to  all  other — forms  of  insurance, 
excepting  so  far  as  they  may  be  qualified  by  the  nature  of  the 
contract. 

From  one  interesting  case  which  has  occurred  in  England, 
it  seems  that,  when  an  application  is  made  for  insurance,  or 
guaranty  against  the  fraud  or  misconduct  of  an  agent,  questions 
are  proposed,  as  we  should  expect,  which  are  calculated  to  call 
forth  all  the  various  facts  illustrative  of  the  character  of  the 
agent,  and  all  which  could  assist  in  estimating  the  probability 
of  his  fidelity  and  discretion.  But  a  declaration  of  the  appli- 
cant as  to  the  course  or  conduct  he  was  to  pursue  was  distin- 
guished from  a  warranty.  He  may  recover  on  the  policy, 
although  he  changes  his  course,  provided  the  declaration  was 
honest  when  "made,  and  the  change  of  conduct  was  also  in  good 
faith.  In  this  case  the  application  was  for  insurance  of  th« 
fidelity  of  the  secretary  of  an  institution.  There  was  a  ques. 
tion  as  to  when,  and  how  often,  the  accounts  of  the  secretary- 
would  be  balanced  and  closed  ;  and  the  applicant  answered  that 
these  accounts  would  be  examined  by  the  financial  committee 
once  a  fortnight.  A  loss  ensued  from  the  dishonesty  of  the 
secretary,  and  it  appeared  to  have  been  made  possible  by  the 
neglect  of  the  committee  or  the  directors  to  examine  his  accounts 
in  the  manner  stated  in  the  policy.  But  the  insurers  were  held 
on  the  ground  that  there  was  no  warrantv. 


^.Q  DEEDS  CONVEYING  LAND. 


CHAPTER   XXIX. 
DEEDS  CONVEYING  LAND. 


SECTION   I. 

WHAT    IS    ESSENTIAL   TO    SUCH    DEEDS. 

By  the  old  law,  no  instrument  was  considered  made  until  it 
was  sealed ;  then  it  was  thought  to  be  done,  and  the  word  deed, 
which  literally  means  only  something  done,  was  given  to  every 
written  instrument  to  which  a  seal  was  affixed  ;  and  that  is  the 
?egal  meaning  now.  But  the  common  meaning  of  the  word  is 
;in  instrument  for  the  sale  of  lands  ;  and  it  is  of  this  that  we 
would  now  treat. 

By  the  statutes  and  usage  of  this  country  generally,  no 
lands  can  be  transferred  excepting  by  a  deed,  which  is  signed, 
sealed,  acknowledged,  delivered,  and  recorded.  In  some  States 
jiieals  are  abolished. 

We  give  annexed  to  this  chapter  an  Abstract  of  the  Laws 
of  all  the  States  relating  to  deeds  and  their  requirements 

What  the  deed  should  be,  that  is,  in  what  words  it  should 
be  expressed,  we  can  best  show  by  the  forms  appended  to  this 
chapter,  and  do  not  propose  to  say  more  about  it  than  this.  It 
is  not  safe  to  depart  from  forms,  and  established  phrases,  which 
have  passed  before  the  courts  so  often  that  their  exact  meaning 
is  certainly  known.  There  are  things  which  seem  to  be  and 
perhaps  are  vain  repetitions  ;  and  for  the  usual  words  it  may  be 
thought  that  others  of  the  same  or  better  meaning  may  be  sub- 
stituted. Such  changes  may  be  made  perhaps,  without  detri- 
ment ;  but  perJiaps,  also,  with  ruinous  results  ;  and  it  is  not 
wise  to  run  the  risk. 

It  should  be  signed ;  and  this  means,  properly,  that  the 
seller  or  grantor  should  write  his  name  in  the  usual  way,  in  the 
proper  place,  and  with  ink.  If  the  grantor  cannot  write  his 
name,  he  may  merely  make  his  mark.  It  has  been  said  that 
writing  with  a  lead  pencil  is  enough,  but  it  would  not  be  safe 
to  trust  to  it.     The  name  of  the  grantee  should  be  distinctly 


WHAT  IS  ESSENTIAL  TO  SUCH  DEEDS. 


441 


written  in  the  proper  place,  in  ink.  Sometimes,  in  our  large 
cities,  an  agent  buys  land  for  a  principal  who  does  not  wish  to 
be  known,  and  the  agent's  name  is  inserted  as  grantee,  in  pencil, 
and  the  deed  is  so  executed  and  acknowledged  and  delivered; 
and  some  time  afterwards  the  agent  rubs  his  name  out,  and 
writes  the  name  of  his  principal,  the  actual  buyer,  instead. 
But  this  is  a  very  unsafe  and  reprehensible  practice,  and  the 
deed  cannot  be  considered  satisfactory. 

The  deed  of  a  corporation  must  be  signed  by  an  agent  or 
attorney,  who  should  be  careful  to  execute  it  in  the  manner 
indicated  in  some  of  the  forms  appended.  In  one  case,  in 
Massachusetts,  where  a  deed  was  written  throughout  as  the 
deed  of  a  corporation,  and  their  treasurer  signed  it  thus  :  "  In 
^vitness  whereof,  I,  the  said  C  C,  in  behalf  of  the  said  com.pany, 
and  as  their  treasurer,  have  hereunto  set  my  hand  and  seal," — ■ 
ii:  was  held  that  this  was  the  deed  of  the  treasurer,  and  not  the 
deed  of  the  corporation,  and  did  not  transfer  the  lands.  This 
is  an  extreme  case,  and  the  law  might  not  always  be  applied 
M^ith  so  much  severity;  but  it  is  best  not  to  incur  any  such  risk. 
So,  to,  the  rule  that  a  person  who  is  to  be  authorized  to  affix 
the  seal  of  another  should  be  authorized  under  the  seal  of  the 
principal,  is  so  general,  that,  although  it  has  important  excep- 
tions,  it  should  always  be  observed. 

The  seal  is  properly  a  piece  of  paper  wafered  on,  or  sealing 
wax  pressed  on.  In  the  New  England  States  generally,  and  in 
New  York,  nothing  else  satisfies  the  legal  requirement  of  a 
seal.  In  the  Southern  and  Western  States  generally,  a  scrawl, 
intended  for  a  seal,  usually  made  by  writing  the  word  "seal" 
within  a  square  or  diamond,  is  regarded  in  law  as  a  seal.  If 
there  be  but  one  seal  on  an  instrument,  and  many  parties,  all 
of  whom  should  seal  it,  this  seal  will  be  taken  generally  for  the 
seal  of  each  one  ;  although,  properly,  each  signer  should  put  a 
seal  against  his  own  name. 

The  deed  should  be  delivered.  If  a  man  makes  a  deed,  and 
acknowledges  it,  and  keeps  it  in  his  possession,  and  dies,  the 
deed  has  no  effect  whatever  ;  no  more  than  if  the  grantor  had 
put  it  in  the  fire.  Even  where  it  was  recorded,  and  then  taken 
back  by  the  grantor  and  kept  by  him,  with  words  going  to  show 


^2  DEEDS  CONVEYING  LAND. 

that  the  grantor  did  not  wish  the  grantee  to  know  of  it,  it  was 
held  not  to  have  been  deHvered.  But  there  are  no  especial 
words  or  form  necessary  for  delivery.  If  the  deed,  in  any  way 
whatever,  gets  into  the  possession  of  the  grantee,  with  the 
knowledge  and  consent  of  the  grantor,  it  is  a  delivery. 

The  grantor  may  deliver  it  by  his  agent,  and  it  may  be 
delivered  to  the  agent  of  the  grantee,  authorized  by  him  to 
receive  it.  Moreover,  the  law  permits  a  kind  of  conditional 
delivery.  Thus,  the  grantor  may  deliver  the  deed  to  a  third 
person,  to  be  delivered  by  him  to  the  grantee  on  a  certain  con- 
dition, or  when  a  certain  thing  is  done  ;  and  when  that  condition 
is  performed,  or  the  thing  is  done,  the  deed  belongs  to  the 
grantee,  and  takes  effect  in  the  same  way  as  if  it  had  been 
delivered  to  him  personally.  In  legal  language,  the  deed  is 
said  to  be  delivered  to  the  third  person,  as  an  escrow. 

So  the  grantor  may  put  the  deed  in  the  hands  of  the  third 
person,  with  directions  to  give  it  to  the  grantee  after  the  death 
of  the  grantor,  provided  the  grantor  does  not  reclaim  it  in  the 
mean  time.  Then  the  grantor  can  reclaim  it  whenever  he  will, 
which  he  cannot  do  after  he  has  delivered  it  to  the  grantee ; 
but  if  he  does  not  reclaim  it  during  his  life,  at  his  death  it 
becomes  the  property  of  the  grantee,  and  the  law  now  considers 
that  it  was  delivered  to  him  when  first  delivered  to  that  third 
party.  So  that  deed  is  good  even  against  creditors,  provided  th?-.t 
the  grantor  was  perfectly  solvent  when  he  put  the  deed  in  tb« 
hands  of  the  third  party,  and  acted  altogether  in  good  faith. 

If  a  deed  to  a  married  woman  be  delivered  either  to  her  or 
to  her  husband,  it  is  sufficient. 

As  there  must  be  delivery  to  the  grantee,  or  to  some  one 
for  him,  so  there  must  be  assent  and  acceptance  on  his  part. 
The  law  wall  help  any  evidence  tending  to  show  such  assent,  by 
presuming  in  favor  of  the  grantee's  assent  if  the  deed  be  wholly 
and  only  favorable  to  him.  But  not  if  there  is  money  to  be 
paid  by  him,  or  anything  important  to  be  done  if  he  accept  the 
deed. 

It  is  usual  and  proper  that  the  execution  of  the  deed  should 
be  attested  by  witnesses.  In  many  of  our  States,  two  witnesses 
are  required  by  statute.     In  New  York,  one  is  enough.     In  the 


WHA  T  IS  ESSENTIAL  TO  SUCH  DEEDS.  4^3 

greater  number,  witnesses  are  not  absolutely  required  by 
statutes,  nor  by  strict  law  of  any  kind;  but  even  there  it  is 
usual  and  safer  to  have  them. 

The  witness  should  see  the  party  sign  ;  but  if  the  deed  is 
signed  near  him,  and  is  immediately  brought  to  him  by  the 
grantor,  who  tells  him  that  is  his  signature,  and  asks  him  to 
witness,  this  would  be  sufficient  in  law. 

It  is  desirable  that  witnesses,  when  called  on  to  testify, 
should  remember  the  signature,  sealing,  etc.  ;  but  it  is  sufficient 
in  law  that  they  are  certain  of  their  handwriting,  and  can 
declare  under  oath  that  they  should  not  have  attested  the  execu- 
tion and  delivery  if  they  had  not  seen  it.  If  witnesses  are 
dead,  proof  of  their  handwriting  is  sufficient ;  and  if  this  cannot 
be  offered,  then  proof  of  the  handwriting  of  the  grantor  is 
enough.  If  witnesses  attest  the  signing,  sealing,  and  delivery, 
in  the  common  form,  proof  of  their  handwriting,  in  case  of 
their  death  or  absence,  is  proof  of  the  execution  and  deliver)" 
of  the  deed. 

The  witness  should,  properly,  be  of  sufficient  age  and  under 
standing,  but  may  be  a  minor.  He  should  have  no  interest  in 
the  deed.  Hence  a  wife  is  not  a  proper  witness  of  a  deed  to 
her  husband.  But  the  courts,  and  especially  a  court  of  equity, 
would  seldom  permit  a  deed  to  be  avoided  through  the  incompe- 
tence of  a  witness,  if  there  were  no  suspicion  of  wrong. 

Generally  a  deed  is  valid  as  between  the  parties,  although 
not  acknowledged ;  but,  to  entitle  it  to  be  recorded,  it  must  b'l' 
acknowledged.  For  this  purpose  the  grantor  must  go  before  a 
person  qualified  by  law  to  receive  acknowledgments,  and  exhibit 
the  deed  to  him,  and  acknowledge  it  as  his  free  act  and  deed ; 
and  the  person  receiving  the  acknowledgment  then  certifies  that 
he  has  received  this  acknowledgment,  under  the  proper  date. 

In  general  an  acknowledgment  may  be  made  before  any 
justice  of  the  peace,  or  a  commissioner  appointed  for  the  State 
in  which  the  land  to  be  conveyed  is  situated,  if  the  deed  is 
executed  in  another  State,  or  any  consul  or  consular  agent  of 
the  United  States  if  the  deed  is  executed  in  a  foreign  country. 
This  acknowledgment  must  be  made,  or  the  deed  cannot  be 
recorded.  And  the  deed  is  invalid,  as  notice,  if  the  acknowl- 
edgment is  defective,  although  it  is  actually  recorded. 


444 


DEEDS  CONVEYING  LAND. 


Formerly,  all  the  grantors  acknowledged  the  deed  ;  and  this 
continues  to  be  usual  in  most  places,  and  is  the  safest  practice. 
But,  in  some  places,  it  is  now  sufficient  in  law,  if  either  of  the 
grantors  acknowledge  it. 

In  many  States,  if  a  wife,  separately  or  joining  with  her 
husband,  conveys  away  her  land,  a  particular  form  and  mode  of 
acknowledgment  is  required,  in  order  to  ascertain  that  she  does 
it  of  her  own  free  will ;  and  any  such  directions  or  requirements 
should  be  followed  with  great  care.  The  Forms  added  to  this 
chapter  will  show  how  this  is  done. 

An  attorney,  A  B,  who  executes  a  deed  for  another,  C  D, 
should  acknowledge  it  as  "  the  free  act  and  deed  of  the  said 
CD,"  and  not  as  his  own. 

The  justice  taking  the  acknowledgment  must  be  careful  ta 
atate  it  in  his  certificate,  exactly  as  it  was  made  before  him. 

In  some  of  our  States,  recent  laws  have  in  effect  required 
the  assent  of  the  wife  to  a  transfer  of  the  husband's  real  estate  J 
not  merely  to  convey  her  dower,  but  to  pass  the  property  to  the 
grantee.  We  do  not  enumerate  or  specify  these  States  here; 
liaving  given  previously  an  abstract  of  the  law  of  husband  and 
wife  in  all  the  States. 

In  all  our  States,  we  have  the  excellent  system  of  registering 
(or  recording,  as  it  is  more  frequently  called)  all  deeds  of  land 
in  the  public  registers  of  the  county  in  which  the  land  lies. 
This  was  adopted  for  the  purpose  of  giving  certainty  and  noto- 
riety to  title,  and  it  works  admirably  well.  The  investigation 
of  title  is  usually  easy  to  those  accustomed  to  this  mode ;  and 
every  purchaser  of  land  should  ascertain  that  the  deed  will  give 
him  good  title  before  he  takes  it. 

The  law  generally  requires  that  a  deed  of  lands  should  be 
acknowledged  and  recorded,  to  have  full  effect;  but  judicial 
decisions  have  everywhere  qualified  the  force  of  these  words, 
and  in  some  instances  the  language  of  the  statutes  varies.  But 
the  rules  of  law  in  reference  to  the  recording  are  quite  uniform 
in  all  the  States,  and  are  as  follows  : 

In  the  first  place,  every  acknowledged  deed  is  considered  as 
recorded  as  soon  as  it  is  in  the  hands  of  the  recording  officer; 
and  therefore  he  generally  minutes  upon  it  the  day,  hour,  and 


THE  USUAL  CLAUSES  LX  DEEDS. 


445 


minute  when  it  was  received  by  him.  This  may  be  very  import 
ant ,  for  if  A  makes  his  deed  and  delivers  it  to  13,  who  presents 
it  for  record  at  five  minutes  past  noon,  and  C,  a  creditor  of  A, 
attaches  the  same  estate  at  four  minutes  past  noon  of  the  same 
day,  the  grantee  loses  the  land  and  the  creditor  gets  it ;  but  the 
grantee  saves  it,  if  he  presents  it  to  the  ofhce  three  minutes  and 
fifty  seconds  after  noon. 

In  the  next  place,  as  the  purpose  of  public  registration  is 
general  notoriety,  a  deed  is  perfectly  good  without  record  against 
the  grantor  himself  and  his  heirs,  because  the  grantor  himself 
could  not  but  know  of  the  deed,  and,  as  all  title  passed  out  of 
him  by  it,  his  heirs  could  take  none  from  him. 

And  finally,  a  deed  not  recorded  is  just  as  good  as  if  it  had 
been  recorded,  against  any  parties,  or  the  heirs  of  any  parties, 
who  took  the  land  from  the  grantor  by  a  subsequent  deed,  even 
for  a  full  price,  if  they  had  at  the  time  notice  or  knowledge  o( 
the  prior  and  unrecorded  deed.  Many  wise  persons  havr: 
doubted  the  expediency  of  this  last  rule,  because  it  tends  to 
raise  troublesome  questions,  and  to  make  grantees  careles'i 
about  recording  their  deeds.  But  the  rule  itself  is  universally 
and  firmly  established,  and  in  some  statutes  requiring  record 
this  exception  is  expressed. 

A  deed  should  be  dated ;  but,  if  it  have  no  date,  it  will  take: 
effect  from  delivery.  Any  erasures  or  alterations  should  be. 
noticed  and  stated  above  the  names  of  the  witnesses,  as  havin*, 
been  made  before  the  execution  of  the  instrument.  Any  mate- 
rial  alteration  by  a  grantee,  or  by  his  procurement,  makes  the 
deed  void  in  most  cases,  so  far  as  he  is  concerned. 

It  is  usual,  and  therefore  proper,  to  name  executors,  admin- 
istrators, etc.,  as  in  the  forms  appended  ;  but,  generally,  the 
rights  and  obligations  of  the  deceased  fall  by  law  on  their  legal 
representatives. 

SECTION  II. 


THE   USUAL    CLAUSES    IN    DEEDS. 


It  is  customary  to  recite  in  all  deeds  the  consideration  on 
which  they  are  made.  This  is  usually  the  price  paid  for  them. 
Sometimes  it  is  this  price  in  part,  and  other  things  in  part. 


^^^5  DEEDS  CONVEYIXG  LAND. 

Sometimes  there  is  no  price  paid,  tlie  land  being  either  a  gift, 
or  conveyed  for  other  considerations.  In  the  great  majority  of 
deeds,  the  language  used  is,  "  in  consideration  of  (so  much 
money)  paid  me  by  the  said  (grantee),  the  receipt  whereof  I 
acknowledge."  Or  it  is,  "  in  consideration  of  one  dollar  paid 
me,  the  receipt  of  which  I  acknowledge,  and  divers  other  con- 
siderations ; "  or,  "in  consideration  of  one  dollar  to  me  paid, 
the  receipt  of  which  I  acknowledge,  and  of  the  love  and  good- 
will  I  bear  to  the  said  (grantee)."  It  is  always  customary, 
although  not  necessary,  to  put  in  "one  dollar,"  or  some  other 
nominal  sum,  although  no  price  is  paid. 

Although  the  price  is  inserted,  and  the  receipt  thereof  be 
acknowledged,  the  seller  is  not  bound  by  his  receipt.  It  is  a 
general  rule,  as  has  been  stated,  that  all  written  receipts  of 
money  are  open  to  evidence,  as  written  contracts  generally  are 
not.  Under  this  rule,  the  seller  may  sue  for  the  whole  or  any 
part  of  the  money  of  which  he  has  acknowledged  the  receipt,  if 
he  can  prove  that  the  money  he  demands  has  not  been  paid  to 
him.  He  cannot,  however,  say  that  the  money  has  not  been 
paid,  and  tJicrefore  the  deed  is  void,  and  the  land  has  not  passed 
to  the  grantee.  For  only  that  part  of  the  deed  which  is  a  receipt 
is  open  to  denial  or  evidence. 

Of  the  words  of  conveyance,  which  are  usually  "  give,  grant, 
sell,  and  convey,"  it  needs  only  be  said,  that  it  is  best  to  use 
them,  because  it  is  usual,  but  that  other  words,  or  these  with 
some  change,  would  be  sufficient  in  law. 

The  description  of  the  land  should  be  minute  and  accurate, 
to  an  extreme  degree.  In  this  country,  it  is  customary  and  well 
to  refer  to  the  previous  deeds  by  which  the  grantor  obtained  his 
title.  This  is  done  by  describing  them  by  their  parties,  date, 
and  book  and  page  of  registry.  It  may  be  well  to  remark,  that 
a  deed  referred  to  in  a  deed  becomes,  for  most  purposes  in  law, 
a  part  of  the  deed  referring. 

By  the  law  of  England  and  of  America,  if  land  is  conveyed  by 
deed  to  "A  B,"  the  grantee  takes  it  for  his  life  only.  Nor  will 
he  take  it  in  full  property  (or,  to  use  the  technical  law-term,  in 
fee  simple),  that  is,  with  full  power  of  disposing  of  it  during  his 
life  or  at  his  death,  with  a  right  on  the  part  of  his  heirs  to  it  if 


THE  USUAL  CLAUSES  IN  DEEDS. 


447 


he  does  not  dispose  of  it,  unless  it  is  given  to  "  A  B  and  his 
heirs."  These  last  words,  which  are  commonly  called  words  of 
inheritance,  must  always  be  added  ;  for  although  there  are  some 
qualifications  to  this  rule,  which  might  help  those  who  take  such 
a  deed  inadvertently,  there  are  none  to  which  it  would  be  safe  to 
trust. 

The  deed   is  terminated  by  this  clause  of  execution  :  "  In 

witness  whereof,  I,  the  said  A  B,  on  the day  of in  the 

year ,  have  hereunto  set  my  hand  and  seal,"  or  "  subscribed 

(or  written)  my  name  and  affixed  my  seal."  And  there  should 
be  no  departure  from  this,  although  an  exact  adherence  to  this 
formula  may  not  be  necessary  to  the  validity  of  the  deed.  This 
clause  is  often  called  the  "In  Testimonium  clause." 

If  the  deed  contains  nothing  but  what  has  now  been  said,  it 
will  convey  the  land,  or  all  the  right,  title,  and  interest  in  and 
to  the  land,  possessed  by  the  grantor.  But  it  is  only  what  is 
\;alled  a  quitclaim  deed.  That  is,  it  is  not  a  zvan-aiity  deed. 
These  phrases,  which  are  in  common  use,  explain  themselves. 
Originally,  a  quitclaim  deed  was  intended,  and  indeed  operated, 
only  where  the  grantee  already  held  possession  of  the  land,  o- 
some  title  to  it,  and  the  grantor  intended  to  renounce  all  hi.< 
right  or  title  in  favor  of  the  grantee.  But  it  was  soon  usei* 
where  a  man  intended  to  sell  and  convey  land,  but  not  to  giv.- 
any  warranty.  And  now,  because  there  is  some  question,  in 
some  of  our  States,  as  to  the  effect  of  the  words  "give,  grant, 
sell,  and  convey,"  although  there  be  no  express  warranty  in  thi* 
deed,  it  is  best,  and  it  is  usual,  when  only  a  quitclaim  is  intended, 
without  any  warranty  whatever,  to  substitute  for  the  words  of 
conveyance  above  mentioned  the  words  "grant  and  quitclaim," 
or,  more  accurately,  "release  and  quitclaim."  Then,  if  the 
grantee  afterwards  loses  the  land  because  the  grantor  had  no 
title  to  it,  the  grantor  is  nevertheless  under  no  responsibility, 
provided  the  transaction  was  an  honest  one  on  his  part. 

All  purchasers,  therefore,  desire  to  have  a  warranty  deed  if 
they  can  get  one.  And  a  deed  becomes  a  warranty  deed,  when 
clauses  like  those  which  follow  are  inserted  just  before  the  clause 
of  execution  : 

"  And  I,  the  said  A  B  (the  grantor),  for  myself,  my  heirs, 


^8  DEEDS  CONVEYING  LAND. 

executors,  and  administrators,  do  covenant  with  the  said  C  D 
(the  grantee),  his  heirs  and  assigns,  that  I  am  Lawfully  seized  in 
fee  of  the  aforegranted  premises ;  that  they  are  free  from  all 
incumbrances  ;  that  I  have  good  right  to  sell  and  convey  the 
same  to  the  said  C  D  as  aforesaid  ;  and  that  I  will,  and  my  heirs, 
executors,  and  administrators  shall,  warrant  and  defend  the 
same  to  the  said  C  D,  his  heirs  and  assigns  forever,  against  the 
lawful  claims  and  demands  of  all  persons. 

It  will  be  noticed  that  this  paragraph  contains  four  different 
agreements  or  warranties, — covenants  the  law  calls  them.  The 
cases  are  multitudinous,  and  the  law  excessively  nice,  as  to 
their  exact  meaning  and  operation.  None  of  this  technical 
learning  is  it  worth  while  to  spread  before  the  general  reader. 
But  the  general  purpose  and  effect  of  all  of  them  together 
should  be  stated.  It  is,  that  if  "the  said  C  D,"  that  is,  the 
grantee,  or  his  heirs  or  assigns,  are  turned  out  of  that  estate 
(ousted  or  evicted,  the  law  says),  on  the  ground  that  the  grantor 
had  no  title,  or  an  incumbered  title,  and  could  not  convey  any 
good  and  clear  title,  he  or  they  may  fall  back  on  the  grantor  or 
his  heirs,  and  demand  damages  for  the  loss  of  the  land. 

It  is  a  question  how  much  damage  a  grantee  thus  ousted 
shall  recover.  In  most  of  our  States,  it  seems  to  be  the  money 
paid  for  it,  with  interest  (deducting  rents  and  profits),  and  the 
legal  costs  and  charges  (not  including  counsel  fees)  for  defend- 
ing against  the  suit  which  has  ousted  him  from  the  land,  ami 
no  more.  But  in  other  States,  as  generally  in  New  England, 
the  party  ousted  recovers  the  actual  value  of  the  land,  with  hi;.; 
improvements,  which  he  loses  by  the  defect  of  the  grantor's 
title ;  although  this  may  be  much  more  than  he  paid  for  it.  It  is 
not,  however,  settled  uniformly  what  the  measure  of  damages  is. 

In  forms  of  deeds  there  is  usually  a  blank  of  a  few  lines  left 
after  the  words  "incumbrances;"  and  this  is  intended  for  the 
insertion  of  any  mortgage,  or  other  incumbrance,  which  may 
exist;  thus,  "excepting  a  mortgage  to,  etc.,  dated,  etc., to  secure 
the  sum  of,  etc."  Or,  "excepting  a  right  in  the  owners  of  the 
adjoining  land  to  have  and  maintain  a  drain  running,  etc." 

Sometimes  quitclaim   deeds  are  made  with  this    warranty : 
"And  I  will,  and  my  heirs,  etc.,  shall,  warrant  and  defend,  etc., 


THE  USUAL  CLAUSES  IN  DEEDS.  ^g 

to  the  said  C.  D,  etc.,  against  all  claims  and  demands  of  myself, 
or  of  any  persons  deriving  title  by  or  through  me."  Such  a 
warranty  will  hold  the  grantor  and  his  heirs  liable  for  an} 
incumbrance  made  or  suffered  by  him,  but  not  for  any  other. 

As  the  usual  covenants  of  a  warranty  deed  are  made  with 
the  grantee,  "his  heirs  and  assigns,"  if  such  grantee  conveys 
the  land  only  by  grant  and  quitclaim,  without  warranty,  /it's 
grantee  takes  the  benefit  of  all  the  previous  warranties  to 
which  this  last  grantor  was  entitled.  Thus,  A  sells  with 
warranty  to  B ;  B  quitclaims  to  C ;  C  is  ousted  by  D,  who 
proves  that  he  has  a  better  title  than  A.  C  cannot  sue  B 
because  he  got  no  warranty  from  B ;  but  he  can  sue  A  on  A's 
warranty  to  B,  which  was  transferred  to  C. 

Sometimes  estates  are  conveyed  on  condition ;  but  this  is  a 
very  catching  thing,  and  nobody  should  ever  take  such  a  deed 
if  he  can  help  it.  It  is  hardly  safe  to  have  the  word  condition 
in  any  deed  but  a  mortgage.  The  reason  is,  that  if  an  estate  ig 
conveyed  on  condition,  and  the.  condition  is  broken,  the  estate 
is  lost.  Thus  if  land  is  sold  on  a  certain  street  with  this 
clause:  "And  the  land  aforesaid  is  sold  on  condition  that 
neither  the  grantee,  nor  any  one  deriving  title  from  or  through 
him,  shall  build  within  ten  feet  of  the  street."  If  any  owner 
build  six  inches  over  the  line,  by  mistake,  or  extend  his  building 
by  an  addition  of  a  foot  or  so  in  any  part,  the  whole  land,  house 
and  all,  might  be  lost  and  forfeited  to  the  grantor.  And  the 
grantor  can  always  secure  the  proper  effect  of  such  a  condition 
by  a  clause  like  this  :  "  Provided,  however,  and  it  is  agreed,  that 
if  the  said  C  D,  etc.,  shall  build,  etc.,  the  said  A  B,  or  his  heirs 
or  assigns,  may  enter  upon  the  land  hereby  conveyed,  and 
abate  and  remove  any  and  all  buildings  or  parts  of  buildings, 
which  stand  nearer  said  street  than  the  limit  of  ten  feet  afore- 
said;"— or  some  similar  clause,  as  might  be  framed  to  suit  the 
case.  This  would  be  just  as  good  for  the  grantor  and  a  great 
deal  safer  for  the  grantee. 

By  a  rule  of  law  which  originated  in  this  country,  and  is 
now  universal  here,  if  a  married  woman  holds  lands,  the  hus- 
band and  the  wife,  joining  in  one  deed,  may  convey  them.     In 

some  of  our  States  such  a  deed  is  regulated  by  statutes,  which 
29 


4SO 


DEEDS  CONVEYING  LAND. 


of  course  arc  to  be  followed.  And  in  many  of  them  the  wife 
now  has  peculiar  powers  by  statute,  as  stated  in  Chapter  V.  on 
Married  Women.  It  may  be  necessary  that  she  should 
renounce  or  release  certain  rights,  as  of  homestead,  etc.,  under 
these  statutes,  if  it  is  intended  that  the  grantee  should  take  a 
clear  title;  and  in  such  case  proper  words  should  be  inserted. 
This  is  now  the  custom,  for  example,  in  Massachusetts.  She 
hould  always  release  her  right  of  dower,  unless  it  is  intended 
fhat  she  should  preserve  it.  In  some  States  her  signing  the 
deed  with  her  husband  does  not  release  anything,  even  if  it 
could  be  proved  that  such  was  her  intention,  unless  the  deed 
contain  words  expressing  her  intention  to  release  or  convey 
such  or  such  a  right  or  interest.  In  most  printed  forms  there 
i;>  a  blank  left  to  be  filled  up  for  this  purpose.  As  this  differs 
in  different  States  I  shall  refer  to  it  again. 

It  may  be  well  to  remark  that  bargains  are  often  made  for 
the  purchase  and  sale  of  real  property.  If  the  contract  be  oral 
only,  it  has  no  force  in  any  court.  If  it  be  in  writing,  either 
party  may,  in  a  court  of  lavv^,  recover  damages  from  the  other  if 
he  refuses  to  perform  his  contract.  Or,  in  a  court  of  equity,  he 
vnay  compel  the  other  to  execute  his  contract.  Not,  however, 
if  there  was  fraud  in  the  contract,  or  oppression,  or  gross 
misrepresentation,  or  intentional  and  important  concealment. 
But  a  mere  inadequacy  of  price — all  things  being  honest — will 
not  prevent  a  court  of  equity  from  enforcing  such  an  agreement. 

Deeds  conveying  land  are  of  vast  variety.  They  not  only 
differ  that  they  may  suit  the  particular  purposes  of  the  parties 
and  the  terms  of  their  bargain,  but  those  used  in  each  section 
of  the  country  differ  somewhat  in  form  from  those  used  in 
another ;  and  different  conveyancers  in  the  same  State  prefer 
one  form  to  another.  But  these  differences  are  generally,  if 
not  always,  differences  only  of  form,  and  are  seldom  essential 
to  the  meaning  and  effect  of  the  deeds.  I  give  here  forms  of  all 
the  kinds  most  in  use ;  and  in  such  variety,  and  so  selected  and 
prepared,  that  it  is  believed  that  any  person  in  any  part  of 
this  country  will  be  able  to  find  a  form,  which,  either  as  it 
stands,  or  with  such  alterations  as  can  be  readily  seen  to  be 
required  by  the  use  he  would  make  of  it,  will  be  safe,  and  suffi- 
cient for  his  purpose. 


THE  USUAL  CLAUSES  IN  DEEDS.  451 

As  acknowledgments  differ  much  in  form,  enough  of  them 
are  given  to  show  the  kinds  that  are  used.  The  fuller  and  more 
particular  are  the  safer,  although  the  shorter  and  more  general 
might  be  sufficient. 

In  New  England,  a  deed  of  land  is  usually  what  is  called  in 
law  a  Deed  Poll;  by  which  is  meant  a  deed  of  one  party,  and 
from  him  to  another.  In  the  other  States  generally,  a  deed  of 
lands  is  more  commonly  in  the  form  of  an  Indenture,  which,  as 
has  been  said  before,  is  an  instrument  bctzvcen  tzvo  or  more 
parties.  The  difference  between  them  will  be  seen  in  the  forms 
given.  The  first  one  is  a  Deed  Poll.  But  most  of  them  are 
Indentures,  as  they  are  most  frequently  used ;  although  a  Deed 
Poll  that  was  satisfactory  in  other  respects  would  generally 
suffice  to  give  good  title  to  land  anywhere. 

A  form  of  a  Deed  Poll  may  be  converted  into  an  Indenture 
by  changing  the  beginning  of  it  in  the  manner  shown  in  the 
forms,  and,  whenever  the  word  "grantor"  comes,  changing  that 
into  "the  party  of  the  first  part."  And  a  deed  by  Indenture  is 
made  a  Deed  Poll  by  changes  of  an  opposite  kind.  How  to 
make  these  changes  will  be  seen  by  comparing  the  deeds  of  the 
two  kinds  as  herein  given. 

Another  difference  between  the  Deeds  Poll  in  common  use  in 
the  New  England  States,  and  the  deeds  by  Indenture  in  use 
elsewhere,  must  be  noticed. 

If  the  grantor  by  a  Deed  Poll  has  a  wife,  and  it  is  intended 
that  she  shall  relinquish  her  dower,  she  is  not  mentioned  as 
grantor,  but  in  the  "In  Testimonium,"  so  called,  which  is  that 
part  of  the  deed  which  begins  with  "  In  witness  (or  in  testimony) 
whereof,"  her  name  is  mentioned,  and  it  must  be  distinctly  said 
that  she  signs  the  deed  in  token  of  her  relinquishment  or 
release  of  dower.  This  is  shown  in  Form  106.  But  where 
deeds  by  Indenture  are  used,  there  she  is  joined  with  her  hus- 
band, and  named  as  grantor;  he  and  she  being  "parties  of  the 
first  part."  It  is,  however,  not  necessary  that  anything  should 
be  said  in  the  deed  about  her  release  of  dower,  or  homestead ; 
but  she  signs  and  seals  the  deed,  and,  in  the  acknowledgment, 
express  mention  is  made  of  her  release  of  dower  and  home- 
stead,   and    also    that    she   was    separately   examined.      Some 


^52  DEEDS  CONVEYING  LAND. 

of  the  forms  are  drawn  in  this  way.  Other  forms  are 
written  as  if  the  grantor  was  unmarried,  or  as  if  his  wife,  if  he 
had  one,  did  not  intend  to  give  up  her  dower.  But  all  these 
forms  can  be  readily  altered,  and  made  to  resemble  either  of 
the  forms  according  as  there  is  or  is  not  a  wife,  or  as,  if  there 
be  a  wife,  it  is  intended  that  she  should  join  in  the  conveyance 
and  relinquish  her  dower,  or  that  the  husband  should  convey 
subject  to  the  wife's  dower.  If  this  last  be  the  intention,  it  is 
not  necessary  to  say  so,  as  the  mere  fact  that  she  is  not  a 
party  to  the  deed  preserves  for  her  the  right  of  dower. 

(100.) 
A  Deed  Poll  ofWarranty,  in  Common  Use  in  New  England. 

Know  all  Men  by  these  Presents,  That   I,  [the  grantor)  oi 

{residence,  towti  or  city ,  connty  and  State),  {occjipaiion),  in  consideration  of 

{the  amount  paid)  to  me  paid  by  {here  name  the  grantee  or 

purchaser,  giving  in  like  manner  his  residence  and  occupation),  the  receipt 
■whereof  is  hereby  acknowledged,  do  hereby  give,  grant,  bargain,  sell,  an':1 
convey  unto  the  said  {name  the  grantee,  attd  then  describe  the  prem- 

ises granted,  mijiutely  and  accurately): — 

To  Have  and  to  Hold  the  above-granted  premises,  to  the  said  {name 
the  grantee),  his  {or  her  or  their)  heirs  and  assigns,  to  liis  {or  her  or  their] 
use  and  behoof  forever.     And  I,  the  said  {name  of  the grantot-),  for 

{jnyself)  and  {my)  heirs,  executors,  and  administrators,  do  covenant  with  the 
said  {}ia7ne  of  the  grantee),  and  with  his  heirs  and  assigns,  that  I  am  hwfully 
seized  in  fee  simple  of  the  aforegranted  premises  ;  that  they  are  free  from 
all  incumbrances  {if  there  be  any  incti7nbrances,  as  a  mortgage  or  lien,  c  f 
right  of  way,  or  drain,  or  air,  or  light,  say  excepting,  and  then  describe  th-i 
iticumbra7ice),  that  I  have  good  right  to  sell  and  convey  the  same  to  the  sai  i 
{jiatne  of  the  grantee),  and  his  {or  her)  heirs  and  assigns  forever  as  afore- 
said ;  and  that  I  will,  and  my  heirs,  executors,  and  administrators  sliall,  war- 
rant and  defend  the  same  to  the  said  {name  of  the  grantee),  and  his  heirs 
and  assigns  forever,  against  the  lawful  claims  and  demands  of  all  persons. 

In  Witness  Whereof,  I,  the  said  {name  of  the gratttor),  and  {name 
of  his  wife),  wife  of  said  grantor,  in  token  of  her  release  of  all  ri^htand  title 
of  or  to  dower  in  the  granted  premises,  have  hereunto  set  our  hinds  and  seals 
this  day  of  in  the  year  of  our  Lord  eigliteen  hun- 

dred and 

{Signature^     {Seal') 

Signed,  Sealed,  and  Delivered  in  Presence  of 

In  those  States  in  which  a  homestead  law  exists,  the  signa- 
ture of  the  wife,  with  a  clause  like  that  above,  would  not  release 


FORMS  OF  DEEDS.  453 

che  homestead.  To  effect  this  the  following  clause  should  be 
inserted  before  the  words,  "  In  token  of  :  " — 

"  In  token  of  her  release  to  the  s.iid  {tiame  of  the  grantee),  of  all 

her  right,  interest,  and  estate  to  or  in  the  premises  herein  conveyed,  under  the 
homestead  laws  of  this  State  ;  and  also,"  etc. 

Some  conveyancers  think  this  hardly  sufficient,  and  prefer 
the  following  method,  which  would  undoubtedly  be  effectual  in 
every  one  of  these  States.  Insert  before  the  paragraph  begin- 
ning "In  witness  whereof,"  this  paragraph  ;— 

"  And  I,  {navic  of  the  ivife)  wife  of  the  said  {the  ftame  of  the 

i^rantor),  in  consiJeration  of  one  dollar  to  me  paid  by  the  said  {the  name 
fif  the  grantee),  the  receipt  whereof  is  acknowledged,  do  hereby  release  and 
assign  to  the  said  {the  name  of  the  grantee),  and  his  heirs  and  assigns, 

all  my  riglit,  interest,  claim,  and  estate  in  or  to  the  premises  within  granted, 
under  the  homestead  laws  of  this  State,  or  any  other  statutory  provisions 
thereof." 

It  is  to  be  remembered  that,  whether  the  deed  be  a  warranty 
deed  like  that  above  given,  or  a  release  or  quitclaim,  or  a  mort- 
gage deed,  it  is  equally  necessary  and  proper  that  the  wife  should 
release  her  homestead  right  and  her  dower,  unless  it  is  intended 
that  she  should  retain  them. 

Below  the  deed  comes  the  acknowledgment,  of  which  the 
briefest  form  is  as  follows,  which  is  sufficient  in  a  few  States  : 

Commonwealth  {or  State)  of  {County)  SS.     {Town,  Month,  and 

Pate )     Then  personally  appeared  the  above-named  and  acknowl- 

edged the  abave  instrument  to  be  free  act  and  deed  ;  before  me, 

Justice  of  the  Peace. 

If  the  wife  is  a  party  to  the  deed,  she  should  make  her  sep- 
arate acknowledgment. 

A  full  Form  of  acknowledgment,  by  both  parties,  sufficient 
anywhere,  may  be  found  in  Form  112. 

(107.) 

Deed  of  Gift  by  Indenture,  without  any  Warranty 
whatever. 

This  Indenture,  Made  the  day  of  in  tho 

year  one  thousand  eight  hundred  and  between 


454 


DEEDS  CONVEYING  LAND. 


{iiaiite,  ?-csuicnce,a}id occupation  of  tJie grantor)  of  ihe  first  part,  and 
(jiuiiie,  residence,  and  occupation  of  the  gra7ttce)  of  the  second  part,  witness- 
eth,  that  the  said  {the  grantor)  as  well  for  and  in  consideration  of  the  love 
and  affection  which  he  has  and  bears  towards  the  said  {the grantee) 

as  for  the  sum  of  one  dollar,  Liwful  money  of  the  United  States,  to  him  in 
hand  paid  by  the  said  party  of  the  second  pnrt,  at  or  before  t'le  ensealing 
and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
has  given, granted,  ahened,  enfeoffed,  released,  corveyed,  and  confirmed,  ami 
by  these  presents  does  give,  grant,  aliene,  enfeoff,  release,  convey,  and  con- 
firm, unto  the  said  party  of  the  second  part  and  his  heirs  and  assigns  forever, 
all  {here  describe  carefully  the  land  or  premises  granted,  by  metes  and 
bounds,  and  dimensions,  contents  or  quantity,  or  bouiidary  marks  or  monti- 
ments,  and  refer  by  volume  and  page  to  the  deed  of  the  land  to  the  grantor^ 
under  which  he  holds  it). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging  or  in  any  wise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof. 
And  also,  al'  the  estate,  right,  title,  interest,  property,  pos- 

session, claim,  and  demand  whatsoever,  of  the  said  party  of  the  first  part,  of, 
in,  and  to  the  same,  and  every  part  and  parcel  thereof,  with  their  and  every 
of  their  appurtenances.  To  have  and  to  hold  the  said  hereby  granted  and 
described  premises  and  every  part  and  parcel  thereof  with  the  appurtenances 
unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  to  his  and 
their  only  proper  use,  benefit,  and  behoof  forever. 

In  Witness  "Whereof,  The  said  party  of  the  first  part  has  hereunto  set 
his  hand  and  seal  the  day  and  year  first  above  written. 

{Signature.)    {Seal.) 

Sealed  and  Delivered  in  the  Presence  of 

(108.) 
Deed  of  Bargain  and  Sale  -without  any  Warranty. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between 

{name,  residence,  atid  occtepation  of  the gratitor)  of  the  first  part,  and 
{name,  residence,  and  occupation  of  the  grantee)  of  tlie  second  part,  witness- 
eth,  that  the  said  party  of  the  first  part,  for  and  in  consideration  of  the  sum 
of  lawful  money  of  the  United  States  of  America,  to  him  in 

hand  paid,  by  the  said  party  of  the  second  part,  at  or  before  the  ensealing 
and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
has  granted,  bargained,  sold,  aliened,  remised,  released,  conveyed,  and  con» 
firmed,  and  by  these  presents  does  grant,  bargain,  sell,  aliene,  remise,  release, 
convey,  and  confirm,  unto  the  said  party  of  the  second  part,  and  to  his 

and  assigns  forever,  all  {here  describe  carefully  the  land  or  pretnises 
granted,  as  directed  in  For//i  I07). 


FORMS  OF  DEEDS.  455 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereto  belonging  or  in  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof.  And 
also  all  the  estate,  riglit,  title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of  the  first 
part,  of,  in,  or  to  the  above-described  premises,  and  every  part  and  parcel 
thereof,  with  the  appurtenances.  To  have  and  to  liold  all  and  singular  the 
above  mentioned  and  described  premises,  together  with  the  appurtenances, 
unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns  forever. 

In  "Witness  Whereof,  The  said  party  of  the  first  part  has  hereunto  set 
his  hand  and  seal  the  day  and  year  first  above  written. 

{Signaiiire.)     {Seal.) 

Sealed  and  Delivered  in  the  Presence  of 

State  of  ^ 

>•  ss. 
County  of  ) 

On  this  day  of  "    in  the  year  one  thou- 

sand eight  hundred  and  before  me  personally  came 

{tlie  name  of  the  party  of  the  f  rst  part  who  is  the  grantor)  who  is  known 
by  me  to  be  the  individual  described  in,  and  who  executed  the  foregoing  in- 
strument, and  then  and  there  acknowledged  that  he  executed  the  same  as 
and  for  his  own  deed. 

{Signature.) 
(109.) 

Quitclaim.  Deed  without  any  Warranty. 

This  Indenture,  Made  the  day  of  in  th'k 

year  one  thousand  ^ight  hundred  and  between 

(fiat/ie,  residence,  and  occupation  of  the  gratttor)  of  the  first  part,  and 
{name,  residence,  and  occiipation  of  the  grantee)  of  the  second  part,  witness 
eth,  that  the  said  party  of  the  first  part,  for  and  in  consideration  of  the  suivt 
of  lawful  money  of  the  United  States  of  America,  to  hini 

in  hand  paid,  by  the  said  party  of  the  second  p:irt,  at  or  before  the  ensealing 
and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
has  remised,  released,  and  quitclaimed,  and  by  these  presents  does  remise, 
release,  and  quitclaim,  unto  the  said  party  of  the  second  part,  and  to  his  heirs 
and  assigns  forever,  all  {here  describe  carefully  the  latid  or  premises  granted, 
as  directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereto  belonging  or  in  any  wise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof. 
And  also  all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of  the  first 
part,  of,  in,  or  to  the  above-described  premises,  and  every  part  and  parcel 
thereof,  with  the  appurtenances.     To  have  and  to  hold  all  a:id  singular  the 


456  DEEDS  CONVEYING  LAND. 

above  mentioned  and  described  premises,  together  with  the  appurtenances, 
unto  the  said  party  of  the  second  j^art,  and  liis  heirs  and  assigns  forever. 

In  "Witness  Whereof,  The  said  party  of  the  first  part  has  hereunto  set 
his  hand  and  seal  the  day  and  year  first  above  written. 

(Signature^    (Sea/.) 

Sealed  and  Delivered  in  the  Presence  of 

State  of  "> 

>-ss. 
County  of  ) 

On  this  day  of  in  the  year  one  thou- 

sand eight  hundred  and  before  me  personally  came 

{the  name  of  the  grantor)  who  is  known  by  me  to  be  the  individual  described 
in,  and  who  executed  the  foregoing  instrument,  and  acknowledged  that  he 
executed  the  same. 

(^Signature) 
(110.) 

Deed  Poll  of  Release  and  Conveyance,  Short  Form. 

Know  all  Men  by  these  Presents,  That  I,  {the  natne 

f  releasor)  of  the  County  of  and  State  of 

for  and  in  consideration  of  one  dollar  to  me  in  hand  paid,  and  for  other 
p:ood  and  valuable  considerations,  the  receipt  whereof  is  hereby  confessed, 
do  hereby  grant,  bargain,  remise,  convey,  release,  and  quitclaim  unto 

{the  name  of  the  releasee)  of  tlie  County  of 
and  State  of  all  the  right,  title,  interest,  claim,  or  demand 

whatsoever,  I  may  have  acquired  in,  through,  or  by  a  certain  indenture  or 
deed,  bearing  date  the  day  of 

A.  D.  i8         ,  and  recorded  in  the  office  of 

County,  and  State  of  in  book  of 

page  to  the  premises  therein  described,  to  wit  {here  describe 

carefully  the  land  or  premises  granted,  as  directed  in  Form  107). 

Witness  my  hand  and  seal,  this  day  of 

A.  D.  18 

{Signature.)        {Seal.) 

State  of  "> 

>•  ss. 
County.      ) 

I,  in  and  for  said  county,  in  the  State  aforesaid, 

do  hereby  certify,  that  {the  name  of  the  releasor)  personally 

known  to  me  as  the  same  person  whose  name  is  subscribed  to  the  foregoing 
deed,  appeared  before  me  this  day,  in  person,  and  acknowledged  that  he 
signed,  sealed,  and  delivered  the  said  instrument  in  writing,  as  his  own  free 
and  voluntary  act,  for  the  uses  and  purposes  therein  set  forth. 

Given  under  my  hand  and  seal,  this  day  of 

A.  D.   18 

{Signature.)        {Seal.) 


FORMS  OF  DEEDS. 


457 


(111.) 
Deed,  with  Special  "Warranty  against  the  Grantor  cnlj. 

This  Indenture,    Made  this  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  between 

{t/ie  7tame  of  the  grantor)  and  {name  of  tne 

wife  of  grantor)  wife  of  the  said  {nayne  of  the  grantor) 

of  the  County  of  and  State  of 

parties  of  the  first  part,  and  {name  and  residence  of  the  grantee) 

party  of  the  second  part  :  Witnesseth,  that  the  said  parties  of  the  first  part, 
for  and  in  consideration  of  the  sum  of  to  them  paid 

by  the  said  party  of  the  second  part,  the  receipt  of  which  is  hereby  acknowl- 
edged, do  by  these   presents  grant,   bargain,  and  sell  unto  the  said  party  of 
the  second  part,  and  his  heirs  and  assigns,  the  following-described  tract 
or  parcel       of  land,  situate  in  {here  describe  carefully  the  land  or  premises 
granted,  as  directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereto  belonging,  or  in  any  wise  appertaining,  and  the  reversion 
and  re%'ersions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof ; 
and  also  all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  parties  of  the  first 
part,  of,  in,  or  to  the  above-described  premises,  and  every  part  and  parcel 
'ihereof,  with  the  appurtenances.  To  have  and  to  hold  all  and  singular  the 
above-mentioned  and  described  premises,  together  with  the  appurtenances, 
unto  the  said  party  of  the  second  part  and  his  heirs  and  assigns  forever. 

And  the  said  the  said  parlies  of  the  first  part,  hereby 

expressly  waive,  release,  and  relinquish  unto  the  said  party  of  the  second 
])art,  and  his  heirs,  executors,  administrators,  and  assigns,  all  right,  title, 
claim,  interest,  and  benefit  whatever,  in  and  to  the  above-described  premises, 
and  each  and  every  part  thereof,  which  is  given  by  or  results  from  all  laws 
of  this  State  pertaining  to  the  exemption  of  homesteads. 

And  the  said  parties  of  the  first  part,  for  themselves  and  their  heirs, 
executors,  and  administrators,  do  hereby  covenant,  promise,  and  agree  to 
and  with  the  said  party  of  the  second  part,  his  heirs  and  assigns,  that  the 
said  premises  against  the  claim  of  all  persons,  claiming  or  to  claim  by, 
through  or  under  them  only,  they  will  forever  warrant  and  defend. 

In  Testimony  "Whereof,  The  said  parties  of  the  first  part  have  hereunto 
set  their  hands  and  seals  the  day  first  above  written. 

{Signature  of  gra7itor?)  {Seal.) 

{Signature  of  wife  of  grantor^     {Seal.) 

Sealed  and  Delivered  in  Presence  of 

State  of  ^ 

>  ss. 
County.    ) 
I,  in  and  for  said  county,  in  the  State  aforesaid,  do 

hereoy  certify  that  {name  of  the  grantor)  personally  known  to  me  as 


458  DEEDS  CONVEYING  LAND.  ^ 

the  same  person  whose  name  is  subscribed  to  the  annexed  deed,  appeared 
before  me  this  day  in  person,  and  acknowledged  that  he  signed,  sealed,  and 
delivered  the  said  instrument  of  writing  as  his  free  and  voluntary  act,  for  the 
uses  and  purposes  therein  set  forth. 

And  the  said  {iiainc  of  the  grantor'' s  wife)  wife  of  the  said 

{inline  of  the  grantor)  having  been  by  me  examined,  separate  and  apart  and 
out  of  the  hearing  of  her  husband,  and  the  contents  and  meaning  of  the  said 
instrument  of  writing  having  been  by  me  fully  made  known  and  explained 
to  her,  and  she  also  by  me  being  fully  informed  of  her  right  under  the 
Homestead  Laws  of  this  State,  acknowledged  that  she  had  freely  and  vol- 
untarily executed  the  same,  and  relinquished  her  dower  to  the  lands  and 
tenements  therein  mentioned,  and  also  all  h.er  rights  and  advantages  under 
and  by  virtue  of  all  laws  of  this  State  relating  to  the  exemption  of  home- 
steads, without  compulsion  of  her  said  husband,  and  that  she  does  not  wish 
to  retract  the  same. 

Given  under  my  hand  and  seal,  this  day  of 

A.  D.  i8 

{Signature)         {Seal.) 
(112.) 
Quitclaim  Deed.— Long  Form  Homestead  "Waiver. 

This  Indenture,  Made  the  day  of  in  the  yeat 

of  our  Lord  one  thousand  eight  hundred  and  between 

{name,  residence,  and  occnpation  of  the  grantor,  and  name  of  the  grantor'' s 
wife)  parties  of  the  first  part,  and  {nam-:,  residence,  and  occupation  of  the 
grantee)  party  of  the  second  part, 

Witnesseth,  That  the  said  party  of  the  first  part,  for  and  in  considera- 
tion of  dollars,  in  hand  paid  by  the  said  party  of  the  second 
part,  the  receipt  whereof  is  hereby  acknowledged,  and  the  said  party  of  the 
second  part,  forever  released  and  discharged  therefrom,  have  remised, 
released,  sold,  conveyed,  and  quitclaimed,  and  by  these  presents  do  remis'e, 
release,  sell,  convey,  and  quitclaim  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns  forever,  all  the  right,  title,  interest,  claim,  and  demand 
which  the  said  party  of  the  first  part  have  in  and  to  the  following  described 
lot  ,  piece  ,  or  parcel  ,  of  land,  to  wit  {Jiere  describe  carefully  the  land  or 
premises  granted,  as  directed  in  Form  107). 

To  Have  and  to  Hold  the  Same,  Together  v.ith  all  and  singular  the 
appurtenances  and  privileges  thereunto  belonging,  or  in  any  wise  thereunto 
appertaining  ;  and  all  the  estate,  right,  title,  interest,  and  claim  whatever  of 
the  said  party  of  the  first  part,  either  in  law  or  equity,  to  the  only  proper 
use,  benefit,  and  behoof  of  the  said  party  of  the  second  part,  his  heirs  and 
assigns  forever. 

And  the  said  parties  of  the  first  part  hereby  expressly  waive,  release,  and 
relinquish  unto  the  said  party  of  the  second  part,  his  heirs,  executors,  adminis- 
trators, and  assigns,  all  right,  title,  claim,  interest,  and  benefit  whatever  in 


FORMS  OF  DEEDS. 


459 


and  to  the  above-described  premises,  and  each  and  every  part  thereof  which 
is  given  by  or  resuUs  from  all  laws  of  this  State  pertaining  to  the  exemption 
of  homesteads. 

And  the  said  parties  of  the  first  part,  for  themselves  and  their  heirs, 
executors,  and  administrators,  do  covenant,  promise,  and  agree,  to  and  with 
the  said  party  of  the  second  part,  his  heirs,  executors,  administrators,  and 
assigns,  that  they  have  not  made,  done,  committed,  executed,  or  suffered  any 
act  or  acts,  thing  or  things  whatsoever,  whereby,  or  by  means  whereof,  the 
above-mentioned  and  described  premises,  or  any  part  or  parcel  thereof,  now 
are,  or  at  any  time  hereafter  shall  or  may  be,  impeached,  charged,  or  incum- 
bered, in  any  way  or  manner  whatsoever. 

In  Witness  "Whereof,  The  said  party  of  the  first  part  hereunto  set  their 
hands  and  seals  the  day  and  year  above  written. 

{Signature  of  grantor)  {Seal.) 

{Signature  of  wife  of  grantor.)     {Seal.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  ,  ") 

>  ss. 
County.  ) 

I,  in  and  for  said  county,  and  the  State  aforesaid,  do 

hereby  certify,  that  {name  of  the  grantor)  being  personally  known  to  me  as 
the  same  person  whose  name  is  subscribed  to  the  foregoing  instrument  cf 
writing,  appeared  before  me  this  day,  in  person,  and  acknowledged  that  he 
signed,  sealed,  and  dehvered  the  said  instrument  of  writing  as  his  free  anil 
voluntary  act,  for  the  uses  and  purposes  therein  set  forth. 

And  the  said  {name  of  the  wife)  wife  of  the  said  {naine  of  the  grantor) 
having  been  by  me  examined  separate  and  apart,  and  out  of  the  hearing  of 
her  husband,  and  the  contents  and  meaning  of  the  said  instrument  of  writ- 
ing having  been  by  me  fully  made  known  and  explained  to  her,  and  she 
also  by  me  being  fully  informed  of  her  rights  under  the  Homestead  Laws  (f 
this  State,  acknowledged  that  she  had  freely  and  voluntarily  execute  il 
the  same,  and  relinquished  her  dower  to  the  lands  and  tenements  therein 
mentioned,  and  also  all  her  rights  and  advantages  under  and  by  virtue 
of  all  laws  of  this  State  relating  to  the  exemption  of  homesteads,  without 
the  compulsion  of  her  said  husband,  and  that  she  does  not  wish  to  retract 
the  same. 

Given  under  my  hand  and  official  seal,  this  day  of 

A.  D.  i8 

{Signature.)         {Seal.) 

(113.) 

Deed,  "with  Covenant  against  G-rantor,  •without  Release  of 
Homestead  or  Dower. 

This  Indenture,  Made  the  day  of  in  tlie  year 

one  thousand  eight  hundred  and  between  {name  of  the  grantor) 


460 


DEEDS  CONVEYING  LAND. 


of  the  first  part,  and  {fiame  of  the  grantee)  of  the  second  part,  witnessetk 
That  the  said  party  of  the  first  part,  for  and  in  consi  Icration  of  the  sum  ot 
lawful  money  of  the  United  Slates  of  America,  to  him 
in  hand  [.aid  by  the  said  party  of  the  second  part,  at  or  before  the  ensealing 
and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
ha  granted,  bargained,  sold,  aliened,  remised,  released,  conveyed,  and 
confirmed,  and  by  these  presents  do  grant,  bargain,  sell,  aliene,  remise,  re- 
lease, convey,  and  confirm  unto  the  said  party  of  the  second  part,  and  to  his 
heirs  and  assigns  forever,  all  (here  describe  carefully  the  land  or  pre?nises 
granted,  as  directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging  or  in  any  wise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof. 
And  also  all  t!ie  estate,  right,  title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of  the  first 
^tart,  of,  in,  or  to  the  above-described  premises,  and  every  part  and  parcel 
•hereof,  with  the  appurtenances.  To  have  an  1  to  hold  all  and  singular  the 
obove  mentioned  and  described  premises,  together  with  the  appurtenances, 
unto  the  said  party  cf  the  second  part,  and  his  heirs  and  assigns  forever. 

And  the  said  {iiaine  of  the  grantor  )  for  (himself)  and  (his)  heirs,  execu- 
liors,  and  administrators,  does  hereby  covenant,  promise,  and  agree  to  and 
with  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  that  (he)  ha 
not  made,  done,  committed,  executed,  or  suffered  any  act  or  acts,  thing  or 
things  whatsoever,  whereby  or  by  means  whereof,  the  above  mentioned  and 
described  premises,  or  any  part  or  parcel  thereof,  now  are,  or  at  any  time 
hereafter  shall  or  maybe,  impeached,  charged,  or  incumbered  in  any  manner 
ctr  way  whatsoever. 

In  "Witness  Whereof,  The  said  par'y  of  the  first  part  ha  hereunto  set 
Oiis)  hand    and  seal    the  day  and  year  first  above  written. 

{Signatu7-e  .)     {Seal  .) 
Sealed  and  Delivered  in  the  Presence  of 

State  of  ,'\ 

y  ss. 
County.  ) 

I,  in  and  for  said  county,  and  the  State  aforesaid,  do 

hereby  certify,  that  {name  of  the  grantor)  being  personally  known  to 

me  as  the  same  person  whose  name  (is)  subscribed  to  the  foregoing  instrument 
of  writing,  appeared  before  me  this  day,  in  person,  and  acknowledged  that 
(he)  signed,  sealed,  an  J  delivered  the  said  instrument  of  writing  as  (his)  free 
and  voluntary  act,  for  the  uses  and  purposes  therein  set  fortli. 

Given  under  my  hand  and  official  seal  this  day  of 

A.D.  18 

(Signature^    (Seal^ 


FORMS  OF  DEEDS. 


(114.) 


461 


Separate  Relinquishment  of  Homestead  and  Dower  in 
Land  sold  under  Execution. 

Know  all  Men  by  these  Presents,  That  we  {name  and  residetm 

of  the  debtor)  and         {ftame  of  his  wife)  wife  of  the  said 
of  the  County  of  and  State  of  ,  parties  ot 

the  first  part,  for  the  sum  of  one  dollar  to  us  paid  by  {name  of  the 

purchaser)  of  the  County  of  and  State  of 

party  of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged,  do 
hereby  agree  and  consent  to  let  the  said  party  of  the  second  part  levy  and 
sell,  under  a  certain  execution,  in  favor  of  him,  the  said  party  of  the  second 
part,  and  against  {name  of  the  debtor^  or  the  defendant  in  the  suit  in 

•which  the  execution  issued)  now  in  the  hands  of  the  sheriff  of  the  County  of 

and  State  nf  and  dated  the 

day  of  AD.  iS      ,  the  following-described  tract    of  land, 

situated  in  the  County  of  and  State  of  to  wit  {hen 

describe  carefully  the  land  or  premises  gj'anted,  as  directed  in  Form  1071. 
(and  being  the  same  land  heretofore  held,  used,  and  occupied  by  the  said 
parties  of  the  first  part,  as  a  homestead)  hereby  waiving,  releasing,  relin 
quishing,  and  surrendering  to  and  in  favor  of  said  party  of  the  second  part, 
under  the  said  levy  and  sale  on  said  execution,  all  the  right,  title,  clain>, 
interest,  and  benefit  which  we,  the  said  parties  of  the  first  part,  and  each  c>:' 
us,  have  in  and  to  said  premises,  by  virtue  of  any  and  all  homestead-exemp- 
tion laws,  now  or  heretofore  in  force  in  the  State  of  ,  and  more 
especially  "  An  Act  to  exempt  Homesteads  from  Sale  on  Execution,"  now  i.-a 
force  in  the  State  of 

Witness  our  hands  and  seals  this  the  day  of  18     . 

{Signature.)     {Seal.) 
{Signature.)     {Seal.) 
State  of  ,  ^ 

>-ss. 
County.  ) 

I,  in  and  for  said  county,  in  the  State  aforesaid,  do 

hereby  certify  that  personally  known  to  me  as  the  same 

person  whose  name  is  subscribed  to  the  annexed  instrument,  appeared 
before  me  this  day  in  person,  and  acknowledged  that  he  signed,  sealed, 
and  delivered  the  said  instrument  of  writing  as  his  free  and  voluntary  act, 
for  the  uses  and  purposes  therein  set  forth. 

And  the  said  {the  name  of  the  wife)  wife  of  the  said 

having  been  by  me  examined,  separate  and  apart,  and  out  of  the  hearing  of 
her  husband,  and  the  contents  and  meaning  of  the  said  instrument  of  writing 
having  been  by  me  fully  made  known  and  explained  to  her,  and  she  also  by 
me  being  fully  informed  of  her  rights  under  the  Homestead  Laws  of  this 
State,  acknowledged  that  she  had  freely  and  voluntarily  executed  the  same, 
and  relinquished  her  dower  to  the  lands  and  tenements  therein  mentioned, 


462  DEEDS  CONVEYING  LAND. 

without  compulsion  of  lier  said  husband,  and  that  she  does  not  wish  to 
retract  tlic  same. 

Given  u:;dcr  my  hand  and  seal  this  day  of  A.D.  18     . 

{Signature^    {Seal.) 
(115.) 

Full  Warranty  Deed,  by  Indenture,  without  Release  of 
Homestead  or  Dower. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  {tiame, 

residence,  and  occupation  of  the  grantor)  party  of  the  first  part,  and 
{name,  residence,  and  occupation  of  the  grantee)  party  of  the  second  part, 
witnesseth,  that  the   said  party  of  the  first  part,  for  and  in  consideration  of 
the  sum  of  lawful  money  of  the  United  States,  to  him 

in  hand  paid  by  the  said  party  of  the  second  part,  at  or  before  the  ensealing 
and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
and  the  said  party  of  the  second  part,  and  his  heirs,  executors,  and  admin- 
istrators, forever  released  and  discharged  from  the  same,  by  these  presents, 
has  granted,  bargained,  sold,  aliened,  remised,  released,  conveyed,  and  con- 
firmed, and  by  these  presents  does  grant,  bargain,  sell,  aliene.  remise,  release, 
convey,  and  confirm,  unto  the  said  party  of  the  second  part,  and  to  Lis  heirs 
and  assigns  forever,  all  {here  describe  carefully  the  land  or  premises  granted, 
as  directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof. 
A.nd  also  all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of  the 
first  part,  of,  in,  and  to  the  sime,  and  every  part  and  parcel  thereof  with  the 
appurtenances  :  To  have  and  to  hold  the  above  granted,  bargained,  and 
described  premises,  with  the  appurtenances,  unto  the  said  party  of  the 
second  part,  and  his  he'rs  and  assigns,  to  his  and  their  own  proper  use, 
benefit,  and  behoof  forever. 

And  the  said  {name  of  the  grantor)  for  himself  and  his  heirs, 

executors,  and  administrators,  does  covenant,  grant,  and  agree  to  and  with 
the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  that  the  said 
{ttame  of  granto?-)  at  the  time  of  the  sealing  and  delivery  of  these 
presents,  is  lawfully  seized,  in  his  own  right,  of  a  good,  absolute,  and 
indefeasible  estate  of  inheritance,  in  fee  simple,  of  and  in  all  and  singular 
the  above  granted  and  described  premises,  with  the  appurtenances  thereunto 
belonging,  and  has  good  right,  full  power,  and  lawful  authority  to  grant, 
bargain,  sell,  and  convey  the  same,  in  manner  aforesaid.  And  that  the  said 
party  of  the  second  part,  and  his  heirs  and  assigns,  shall  and  may  at  al! 
times  hereafter,  peaceably  and  quietly,  have,  hold,  use,  occupy,  possess,  and 
enjoy  the  above-granted  premises,  and  every  part  and  parcel  thereof,  with 


FORMS  OF  DEEDS.  463 

the  appurtenances,  without  any  let,  suit,  troul^lc,  mclcstation,  eviction,  or 
disturbance  of  the  said  party  of  tlie  first  part,  or  his  heirs  or  assigns,  or  of 
any  other  person  or  persons  lawfully  claiming  or  to  claim  the  same  ;  and 
that  the  same  now  are  free,  clear,  discharged,  and  unincumbered,  of  and 
from  all  former  and  other  grants,  titles,  charges,  estates,  judgments,  taxes, 
assessments,  and  incumbrances  of  what  nature  or  kind  soever. 

And  also  that  the  said  party  of  tlie  first  part,  and  his  heirs,  and  all  and 
every  person  or  persons  whomsoever,  lawfully  or  equitably  deriving  any 
estate,  right,  title,  or  interest,  of,  in,  or  to  the  hereinbefore  granted  premises, 
by,  from,  under,  or  in  trust  for  him  or  them,  shall  and  will,  at  anytime  or 
times  hereafter,  upon  the  reasonable  request,  and  at  the  proper  costs  and 
charges  in  the  law,  of  the  said  party  of  the  second  part,  his  heirs  and  assigns, 
make,  do,  and  execute,  or  cause  to  be  made,  done,  and  executed,  all  and 
every  such  further  and  other  lawful  and  reasonable  acts,  conveyances,  and 
assurances  in  the  law,  for  the  better  and  more  effectually  vesting  and  con- 
firming the  premises  hereby  granted  or  so  intended  to  be,  in  and  to  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  forever,  as  by  the  said  party 
of  the  second  part,  his  heirs  or  assigns,  or  his  or  their  counsel  learned  in 
the  law  shall  be  reasonably  advised  or  required.  And  the  said  party  of  the 
first  part,  for  himself  and  his  heirs,  the  above-described  and  hereby  granted 
and  released  premises,  and  every  part  and  parcel  thereof,  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part,  and  his  heirs  and  assigns, 
against  the  said  party  of  the  first  part,  and  his  heirs,  and  against  all  and 
every  person  and  persons  whomsoever,  lawfully  claiming  or  to  claim  the 
same,  shall  and  will  warrant  and  by  these  presents  forever  defend. 

In  Witness  Whereof,  the  said  party  of  the  first  part  has  hereunto  set 
his  hand  and  seal  the  day  and  year  first  above  written. 

{Signature.)    {Seal.) 
Sealed  and  Delivered  in  the  Presence  of 

State  of  ,■) 

>-ss. 
County  of  , ) 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came  {tlie  name 

of  the  grantor)  who  is  known  to  me  to  be  the  individual  described  in,  and 
who  executed,  the  foregoing  instrument,  and  acknowledged  that  he  executed 
the  same,  as  his  own  free  act  and  deed. 

(^Signature.) 


.54  DEEDS  CONVEYING  LAND. 

(116.) 

Warranty  Deed,  Short  Form,  with  Release  of  Homestead 

and  Dower. 

This  Indenture,  made  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
between  {name,  residence,  and  occupation  of  grantor,  and  name  of  his 

wife)  of  the  first  part,  and  (name,  residence,  and  occupation  of  grantee) 

of  the  second  part,  witnesseth,  that  the  said  party  of  the  first  part,  in  con- 
sideration of  the  sum  of  dollars  in  hand  paid  (the  receipt  whereof 
is  hereby  acknowledged),  have  granted,  bargained,  and  sold,  and  by  these 
presents  do  grant,  bargain,  and  sell,  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns,  all  that  piece  or  parcel  of  land  situate  in 
in  the  County  of  and  State  of  to  wit 
[Jiere  describe  carefully  the  land  or  premises  granted,  as  directed  in  Form 
107). 

Together  with  the  appurtenances  thereunto  belonging ;  and  all  the  estate, 
rio-ht,  title,  interest,  claim,  and  demand  of  the  said  party  of  the  first  pan 
herein. 

And  the  said  {name  of  grantor  and  of  his  wife)  parties  of  the  first 

part,  hereby  expressly  waive,  release,  relinquish,  and  convey  unto  the  said 
party  of  the  second  part,  and  his  heirs,  executors,  administrators,  and  assigns, 
all  right,  title,  claim,  interest,  and  benefit  whatsoever,  in  and  to  the  above- 
described  premises,  and  each  and  every  part  thereof,  which  is  given  by  01 
results  from  any  and  all  laws  of  this  State,  pertaining  to  the  exemption  (*{ 
homesteads. 

And  the  said  {name  of  grantor  and  of  his  wife)  for  themselves  and 

their  heirs,  executors,  and  administrators,  do  covenant,  grant,  bargain,  and 
agree  to  and  with  the  said  party  of  the  second  part,  and  with  his  heirs  ard 
assigns,  that  the  above-bargained  premises  in  the  quiet  and  peaceable  pos- 
session of  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  the 
said  party  of  the  first  part  shall  and  will  warrant  and  forever  defend. 

In  Witness  Whereof,  The  said  parties  of  the  first  part  have  hereunto 
set  their  hands  and  seals  the  day  and  year  first  above  written. 

{Signature  of  grantor.)  {Seal.) 

{Signature  of  wife  of  grantor.)    {Seal.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  > 

)■  ss. 
County.  ) 

I,  in  and  for  said  county,  do  hereby  certify  that 

{name  of  grantor)  who  is  personally  known  to  me  as  the  same 

person  whose  name  is  subscribed  to  the  annexed  deed,  appeared  before  me 

this  day,  in  person,  and  acknowledged  that  he  signed,  sealed,  and  delivered 


FORMS  OF  DEEDS. 


46: 


the  said  instrument  of  writing,  as  his  free  and  vohintary  act,  for  the  uses  and 
purposes  therein  set  forth. 

And  the  said  {natne  of  the  wife  of  grantor)  wife  of  the  said 

{name  of  the  grantor)  having  been  by  me  examined  separate  and  apart,  and 
out  of  the  hearing  of  her  husband,  and  the  contents  and  meaning  of  the  said 
instrument  of  writing  been  by  me  fully  made  known  and  explained  to  her, 
and  she  also  by  me  having  been  fully  informed  of  her  riglits,  under  the 
Homestead  Laws  of  this  State,  acknowledged  that  she  had  freely  and  volun- 
tarily executed  the  same,  and  relinquished  her  dower  to  the  lands  and  tene- 
ments therein  mentioned,  and  also  all  her  rights  and  advantages,  under  and 
by  virtue  of  any  and  all  laws  of  this  State  relating  to  the  exemption  of  home- 
steads, without  compulsion  of  her  said  husband,  and  that  she  does  not  wish  to 
retract  the  same. 

Given  under  my  hand  and  official  seal,  this  day  of 

A.D.  18     . 

{Stgnat2tre.)     {Seal.) 

(117.) 

"Warranty  Deed,  with  Covenant  against  Nuisances,  without 
Release  of  Homestead  or  Dower. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  {name, 

residence,  and  occupation  of  the  grantor)  party  of  the  first  part,  and 
{name,  residence,  and  occupatiofi  of  the  grantee)  party  of  the  second  part, 
witnesseth,  that  the  said  party  of  the  first  part,  for  and  in  consideration  of 
the  sum  of  lawful  money  of  the  United  States,  to  him  in  hand  paid 

by  the  said  party  of  the  second  part,  at  or  before  the  ensealing  and  delivery 
of  these  presents,  the  receipt  whereof  is  hereby  acknowledged,  and  the  said 
party  of  the  second  part,  his  heirs,  executors,  and  administrators,  forever 
released  and  discharged  from  the  same,  by  these  presents,  has  granted,  bar- 
gained, sold,  aliened,  remised,  released,  conveyed,  and  confirmed,  and  by 
these  presents  does  grant,  bargain,  sell,  aliene,  remise,  release,  convey,  and 
confirm,  unto  the  said  party  of  the  second  part,  and  to  his  heirs  and  assigns 
forever,  all  {here  describe  care  filly  the  land  or  pretnises  granted,  as  directed 
in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof 
And  also  all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of  the  first 
part,  of,  in,  and  to  the  same,  and  every  part  and  parcel  thereof,  with  the 
appurtenances :  to  have  and  to  hold  the  above  granted,  bargained,  and 
described  premises,  with  the  appurtenances,  unto  the  said  party  of  the  .sec- 
30 


466 


DEEDS  CONVEYING  LAND. 


ond  part,  and  his  heirs  and  assigns,  to  his  and  their  own  proper  use,  benefit, 
and  behoof  forever. 

And  the  said  party  of  the  first  part,  for  himself  and  for  his  heirs,  execu- 
tors, and  administrators,  does  hereby  covenant,  grant,  and  agree  to  and  with 
the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  that  the  said 
party  of  the  first  part,  at  the  time  of  the  sealing  and  delivery  of  these  pres- 
ents, is  lawfully  seized  in  his  own  right  of  a  good,  absolute,  and  indefeasible 
estate  of  inheritance,  in  fee-simple,  of,  and  in  all  and  singular  the  above- 
granted  and  described  premises,  with  the  appurtenances  to  them  belonging; 
and  has  good  right,  full  power,  and  lawful  authority,  to  grant,  bargain,  sell, 
and  convey  the  same,  in  manner  aforesaid. 

And  that  the  said  party  of  the  second  part,  and  his  heirs  and  assigns, 
shall  and  may  at  all  times  hereafter,  peaceably  and  quietly  have,  hold,  use, 
occupy,  possess,  and  enjoy  the  above-granted  premises,  and  every  part  and 
parcel  thereof,  with  the  appurtenances,  without  any  let,  suit,  trouble,  moles- 
tation, eviction,  or  disturbance  of  the  said  party  of  the  first  part,  or  his  heirs 
or  assigns,  or  of  any  other  person  or  persons  lawfully  claiming  or  to  claim 
the  same :  And  that  the  same  now  are  free,  clear,  discharged,  and  unincum- 
bered, of  and  from  all  former  and  other  grants,  titles,  charges,  estates,  judg- 
ments, taxes,  assessments,  and  incumbrances  of  what  nature  or  kind  soever. 

And  also  that  the  said  party  of  the  first  part,  and  his  heirs,  and  all  and 
every  person  or  persons  whomsoever,  lawfully  or  equitably  deriving  any 
estate,  right,  title,  or  interest,  of,  in,  or  to  the  hereinbefore  granted  premises, 
by,  from,  under  or  in  trust  for  him  or  them,  shall  and  will,  at  any  time  or 
times  hereafter,  upon  the  reasonable  request,  and  at  the  proper  costs  and 
charges  in  the  law,  of  the  said  party  of  the  second  part,  his  heirs  and  assigns, 
make,  do,  and  execute,  or  cause  to  be  made,  done,  and  executed,  all  and 
every  such  further  and  other  lawful  and  reasonable  acts,  conveyances,  and 
assurances  in  the  law,  for  the  better  and  more  effectually  vesting  and  con- 
firming the  premises  hereby  granted,  or  so  intended  to  be,  in  and  to  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  forever,  as  by  the  said  party 
of  the  second  part,  his  heirs  or  assigns,  or  his  or  their  counsel  learned  in 
the  law,  shall  be  reasonably  advised  or  required.  And  the  said  party  of  tht 
first  part,  for  himself  and  for  his  heirs,  the  above-described  and  hereby 
granted  and  released  premises,  and  every  part  and  parcel  thereof,  with  the 
appurtenances,  unto  the  said  party  of  the  second  part,  and  his  heirs  and 
assigns,  against  the  said  party  of  the  first  part,  and  his  heirs,  and  against  all 
and  every  person  and  persons  whomsoever,  lawfully  claiming  or  to  claim  the 
same,  shall  and  will  warrant  and  by  these  presents  forever  defend. 

And  the  said  party  of  the  second  part,  for  himself  and  for  his  heirs  and 
assigns  does  hereby  covenant  to  and  with  the  said  party  of  the  first  part,  and 
with  his  heirs,  executors,  and  administrators,  that  neither  the  said  party  of 
the  second  part,  nor  his  heirs  or  assigns,  shall  or  will  at  any  time  hereafter 
erect  or  permit  upon  any  part  of  the  said  lot,  any  slaughter-house,  smith- 


FORMS  OF  DEEDS.  467 

shop,  forge,  furnace,  steam-engine,  brass-foundry,  nail  or  other  iron  factory, 
or  any  manufactory  of  gunpowder,  glue,  varnish,  vitriol,  ink,  or  turpentine, 
or  for  the  tanning,  dressing,  or  preparing  skins,  hides,  or  leather,  or  any 
brewery,  distillery,  livery-stable,  or  buildings  for  any  noxious  or  dangerous 
trade  or  business. 

In  "Witness  "WTiereof,  the  parties  to  these  presents  have  hereunto  inter- 
changeably set  their  hands  and  seals  the  day  and  year  first  above  written. 

{Signature.)     {Seal.) 

Sealed  and  Delivered  in  Presence  of  {Signature.)    {Seal.) 

State  of  ^ 

>  ss. 
County  of  ) 

On  this  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came  {tlie  natne 

<if  the  party  of  the  first  part.,  who  is  the  grantor)  who  is  known  by  me  to  be 
the  individual  described,  and  who  executed  the  foregoing  instrument,  and 
then  and  there  acknowledged  that  he  executed  the  same  as  and  for  his  own 
deed. 

{Signature^ 

(118.) 

Brief  "Warranty  Deed  in  use  in  Kentucky. 

This  Deed,  made  the  day  of  18 

between  {na>ne,  description,  and  residence  of  grantor,  and  name  of 

grantor's  wife  if  her  relinqnishtnent  of  dower  is  inteiided)  of  the  first  part, 
and  of  the  second  part, 

Witnesseth.,  That  said  first  part}-,  in  consideration  of 
ha      bargained  and  sold  and  hereby  convey    unto  said  second  party, 
{here  describe  the  premises  granted  as  directed  ifi  Form  107)  to  have  and  to 
hold  said  property  unto  said  second  party.  heirs  and  assigns  forever, 

"  with  Covenant  of  General  Warrant}-,"  releasing  all  rights  of  homestead 
and  dower. 

Witness  the  hand        of  ihe  parties,        date  above. 

{Signattires.)    {Seals.) 

Logan-  Countv,  Sct: 

I,  ,  Clerk  of  the  County  Court,  do  certify  that  the 

foregoing  Deed  was  this  day  produced  to  me  in  my 

and  acknowledged  by  to  be  act  and  deo4. 

Given  under  my  hand,  this  day  of  18    . 

Clerks- 
By  Z?.  C 


468  DEEDS  CONVEYING  LAND. 

(119.) 
Brief  Deed  of  "Warranty  in  use  in  Arkansas. 

Know  all  Men  by  these  Presents,    That  we  (jiaine,  description, 

and  residence  of  grantor)  and  {name  of  grantor'' s  wife)  his  wife,  for 

and  in  consideration  of  the  sum  of  dollars,  to 

paid  by  do  hereby  grant,  bargain,  and  sell  unto  the  said 

and     h         heirs  and  assigns  forever,  the  following  lands, 
lying  in  the  county  of  and  State  of  Arkansas,  to  wit : 

{describe  the  premises  granted  as  directed  in  Form  107,)  to  have  and  to  hold 
the  same  unto  the  said  and  unto     h        heirs  and  assigns 

forever,  with  all  appurtenances  thereunto  belonging. 

And  hereby  covenant  with  the  said 

that  will  forever  warrant  and  defend  the  title  to  said  lands 

against  all  claims  whatever. 

And  I,  wife  of  the  said  for  and  in  con- 

sideration of  the  said  sum  of  money,  do  hereby  release  and  relinquish  unto 
the  said  all  my  right  of  dower  in  and  to  the  said  lands. 

"Witness  our  hands  and  seals  on  this  day  of  18    . 

{Signatures.)     {Seals.) 

State  of  Arkansas,  ^ 

>  ss. 
County  of  ) 

Be  it  Remembered,  That  on  this  day  came  before  the  undersigned,  a 

within  and  for  the  county  aforesaid,  duly  commissioned 

and  acting  to  me  well  known  as  the  grantor     in  the  foregoing 

deed,  and  stated  that  he  had  executed  the  same  for  the  consideration  and 

purposes  therein  mentioned  and  set  forth. 

And,  on  the  same  day,  also  voluntarily  appeared  before  me,  the  said 

wife  of  the  said  to  me  well  known,  and  in 

the  absence  of  her  said  husband,  declared  that  she  had  of  her  own  free  will 
signed  and  sealed  the  Relinquishment  of  Dower  in  the  foregoing  deed,  for 
the  purposes  therein  contained  and  set  forth,  without  compulsion  or  undue 
influence  of  her  said  husband. 

"Witness  my  hand  and  seal  as  such  on  this 

day  of  18    . 

{Signature.) 

(120.) 
Brief  "Warranty  Deed  in  use  in  Florida. 

This  Indenture,  Made  this  day  of  A.D., 

18         .between  {name,  residence,  and  occupation  of  the  grantor)oi\ht 

first  part,  and  {name,  residence,  and  occjipation  of  the  grantee)  of  the 

second  part,  witnesseth.  That  the  said  part  of  the  first  part,  for  and  in 


FORMS  OF  DEEDS.  469 

consideration  of  the  sum  of  dollars,  paid  by  the  said 

part        of  the  second  part,  the  receipt  of  which  is  hereby  acknowledged, 
ha        granted,  bar:;ained,  sold,  conveyed,  and  confirmed,  and  by  these  pres- 
ents do         grant,  bargain,  sell,  convey,  and  confirm  unto  the  said  part 
of  the  second  part,         heirs  and  assigns,  certain  tract     or  parcel     of  land, 
situated  in  and  described  as  follows,  to  wit :  {het-e 

describe  the  land  or  premises  granted,  carefully,  as  directed  in  Fon/t  107),  to- 
gether with  all  and  singular,  the  hereditaments,  rights,  privileges,  and  appur- 
tenances thereunto  belonging,  or  in  any  wise  appertaining,  to  have  and  to 
hold  the  said  premises,  as  above  described,  with  the  appurtenances,  to  the 
said  part         of  the  second  part,  heirs  and  assigns  forever. 

And  the  said  part         of  the  first  part,  for  sel  and  heirs, 

executors,  and  administrators,  do  hereby  covenant  to  and  with  the  said 
part  of  the  second  part  heirs,  executors,  administrators,  and  assigns, 
that  well  seized  of  the  premises  above  conveyed,  as  of  a 

good  and  indefeasible  estate  in  fee-simple,  and  ha  good  right  to  sell  and 
convey  the  same  in  manner  and  form  as  aforesaid ;  that  they  are  free  from 
all  encumbrances,  and  that  the  above  bargained  premises,  in  the  quiet  and 
peaceful  possession  of  the  said  part         of  the  second  part,  heirs  or 

assigns,  against  the  claims  of  all  persons  whomsoever,  will  warrant  and  for- 
ever defend. 

In  "Witness  Whereof,  The  said  part        of  the  first  part  ha      ,  hereunto 
set  hand     and  seal     the  day  and  year  first  above  written. 

{Signature^    (Seal.) 
(Signature^    (Seal.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  Florida,    ^ 

>  ss. 
County.  ) 

I,  wife  of  do  hereby  declare  that  I 

nave  joined  with  my  said  husband  in  the  execution  of  the  above  deed  for 
the  purpose  of  relinquishing  and  renouncing  my  right  of  dower,  and  all  my 
right,  title,  interest,  in  and  to  the  above  described  premises  and  lands,  or 
parcels  of  land.  And  I  do  hereby  declare  that  I  executed  the  same  freely 
and  voluntarily,  and  without  any  compulsion,  constraint,  apprehension,  or 
fear  of,  or  from,  my  said  husband  ;  and  that  this  acknowledgment  is  taken 
and  made,  signed,  and  sealed,  separately  and  apart  from  my  said  husband, 
this  day  of  A.D.  18 

(Signature.)  (Seal.) 

State  of  Florida,        ^ 

County.  ) 

I,  a  in  and  for  the 

said  county,  do  hereby  certify  that  the  foregoing  declaration  was  taken  and 

made  by  the  said  before  me  separately  and  apart  from 

her  husband — the  said  ;  and  that,  having  been,  by 


470 


DEEDS  CONVEYING  LAND. 


ss. 


me,  made  acquainted  with  tlie  contents  cf  tl-.e  said  deed  before  the  signing 
thereof  by  her,  and  being,  by  mc,  examined  separate  and  apart  from  her  said 
husband,  acknowledged  that  she  had  executed  the  same,  and  relinquished  and 
renounced  her  dower,  and  all  her  right,  title,  and  interest  in  and  to  the  prem- 
ises conveyed,  freely  and  voluntarily,  and  without  any  compulsion,  constraint, 
apprehension,  or  fear  of,  or  from,  her  said  husband. 

In  Witness  "Whereof,  I  have  hereunto  set  my  hand  and  affixed  my  offi- 
cial seal,  this  day  of  A.D.  i8 

i^Signature^ 
State  of  Florida,         ■) 

County.  ) 

I,  for  said  county,  do  certify  that,  on  this  day, 

personally  appeared  before  me  whose  name     appear 

signed  to  the  foregoing  deed  of  conveyance,  and  who  personally  known 

to  me  to  be  the  identical  person     whose  name  subscribed  to  said  deed 

as  having  executed  the  same,  and  acknowledged  that  had  executed 

the  same,  as  voluntary  act  and  deed,  for  the  uses  and  purposes  therein 

expressed. 

In  "Witness  "Whereof,  I  have  hereunto  set  my  hand  and  affixed  my  official 
seal  this  day  of  A.D.  i8 

(Signature^ 
(121.) 

BriefWarranty  Deed  in  use  in  North  Carolina. 

This  Deed,  Made  this  day  of  l8       , 

by  {name  and  occupation  of  grantoi^,  oi  county, 

and  State  of  to  {name  and  occupation  of  grantee^,  of 

county,  and  State  of  Witnesseth  : 

That  said  in  consideration  of  dollars. 

to  paid  by  ,  the  receipt  of  which  is  hereby 

acknowledged,  ha  bargained  and  sold,  and  by  these  presents  do 

bargain,  sell,  and  convey  to  said  and  heirs,  a  tract 

of  land  in  county,  State  of 

adjoining  the  lands  of  and  others,  bounded  and  described 

as  follows,  viz  :  {here  describe  carefully  the  land  or  premises 

gratited,  as  directed  in  Form  107). 

To  Have  and  to  Hold  the  aforesaid  tract  and  all  privileges 

and  appurtenances  thereto  belonging,  to  the  said  heirs  and 

assigns,  to  only  use  and  behoof. 

And  the  said  covenant      that  seized  of  said 

premises  in  fee,  and  ha     right  to  convey  the  same  in  fee-simple,  that  the 
same  are  free  from  all   incumbrances,  and  that  will  warrant 

and  defend  the  said  title  to  the  same,  against  the  claims  of  all  persons  what' 
soever. 


FORMS  OF  DEEDS. 


471 


And  I  wife  of  the  said  grantor,  for  the  aforesaid  con- 

sideratix)ns  do  hereby  grant  and  release  to  the  said  grantee  and 
heirs,  all  my  right  of  dower  and  all  other  my  right,  title,  and  interest  in  and 
to  the  premises  above  granted. 

In  Testimony  Whereof,  The  said  {jiame  ofgratitor  and  his  tuifc) 

have  hereunto  set  our  hands  and  seals,  the  day  and  year  above  written. 

{Signatures)  {Seals) 

Attest: 

State  of  North  Carolina,         ^ 

County.  ) 
I,  Clerk  of  the  Court,  do  hereby 

certify  that  .  and  his  wife,  appeared 

before  me  this  day,  and  acknowledged  the  due  execution  of  the  annexed  deed 
of  ;  and  the   said  being  by  me  pri- 

vately examined,  separate  and  apart  from  her  said  husband,  touching  her  vol- 
untary execution  of  the  same,  doth  state  that  she  signed  the  same  freely  and 
voluntarily,  without  fear  or  compulsion  of   her  said  husband  or  any  othei 
person,  and  that  she  doth  still  voluntarily  assent  thereto. 
Let  the  same,  with  this  certificate,  be  registered. 
Witness  my  hand  and  ofificial  seal,  this  day  of 

A.D.  18     . 

Clerk  *     Court, 

State  of  North  Carolina,  ^ 

y  ss. 
County.  ) 

I,  Justice  of  the  Peace,  do  hereby  certify  that 

and  his  wife,  personally  appeared  before 

me  this  day,  and  acknowledged  the  due  execution  of  the  within  deed  of 

;  and  the  said  beins:  by  me  privately  exam- 

ined, separate  and  apart  from  her  said  husband,  toucliing  her  voluntary  exe- 
cution of  the  same,  doth  state  that  she  signed  the  same  freely  and  volunta- 
rily, without  fear  or  compulsion  of  her  said  husband  or  any  other  person,  and 
that  she  doth  still  voluntarily  assent  thereto. 

Witness  my  hand  and  private  seal,  this  day  of 

A.D.  18      . 

,y.P.    {Seal.) 
State  of  North  Carolina,        ^ 

y  ss. 
County.  ) 

The  foregoing  certificate  of  ,  a  Justice  of  the  Peace 

of  County,  is  adjudged  to  be  in  due  form  and  accorJ- 

ing  to  law.     Therefore,  let  the  same,  with  this  certificate,  be  registered. 

This  day  of  18       . 

Clerk  Court. 


472 


DEEDS  CONVEYING  LAND. 


(122.) 
Brief  "Warranty  Deed  in  use  in  Mississippi. 

This  Indenture,  Made  and  entered  into  this  day  of 

in  the  year  of  our  Lord,  one  thousand  eight  hundred  and 

between  {name,  residence,  and  occupation  of  the  grantor), 

the  part  of  the  first  part  and  {name,  residence,  and  occupation  of  the 

grantee)^   part     of   the  second   part,  witnesselh  :    That   the  said  part     of 

the  first  part,  for  and  in  consideration  of  the  sum  of 

the  receipt  whereof  is  hereby  acknowledged,  ha  this  day  granted,  bar- 
gained, sold,  and  conveyed,  and  by  these  presents  do  grant,  bargain,  sell, 
and  convey  unto  the  said  part         of  the  second  part,  and  to  heirs  and 

assigns,  all  and  singular  the  following  described  of  land  situate, 

lying,  and  being  in  the  {here  describe  the  land  or  j>re7nises  g7-anted, 

carefully,  as  directed  in  Form  107). 

To  Have  and  to  Hold  the  said  of  land  together  with  all  and 

singular  the  rights,  privileges,  and  appurtenances  thereunto  legally  and  of 
right  belonging,  to  the  said  part         of  the  second  part,  and  to  heirs 

and  assigns  in  fee-simple,  absolute  forever,  and  the  said  part  of  the  first 
part,  for  heirs,  executors,  administrators,  and  assigns,  covenant  and 

agree  to  warrant  and  forever  defend  the  right,  title,  interest,  and  possession 
of  the  estate  herein  granted,  to  the  said  part  of  the  second  part, 

iieirs  and  assigns,  against  the  claim  or  claims  of  any  and  all  persons  claiming 
Or  to  claim  the  same  whatsoever  either  in  law  or  equity. 

In  Testimony  Whereof,  The  said  part         of  the  first  part  ha  here- 

tinto  set  their  hands  and  seals  the  day  and  year  first  above  written. 

{Signatures.)    {Seals.) 

The  State  of  Mississippi,        y  ss. 

Personally  Appeared,  Before  me  the  above  named 

signed,  sealed,  and  delivered  the  foregoing  deed,  on 
the  day  and  year  therein  written,  as  their  act  and  deed,  for  the  purposes 
therein  set  forth. 

(123.) 
"Warranty  Deed  in  use  in  Missouri. 

This  Indenture,  Made  on  the  day  of 

A.D.  one  thousand  eight  hundred  and  by  and  between 

{name  and  occupation  of  the  grantor,  and  name  of  his  wife  if  she  relinquishes 
dower),  of  {residence  of  the  grantor),  part  of  the  first  part,  and 

{name  aiid  occupation  of  the  grantee),  of  the  county  of  in 

tlie   State  of  part         of  the  second  part  ;  Witnesseth, 

That   the   said   part  of  the  first  part,  in  consideration  of  the  sum  of 

dollars,  to  paid  by  the  said  part        of  the 


FORMS  OF  DEEDS. 


473 


second  part,  the  receipt  of  which  is  liereby  acknowledged,  do  by  these 

presents,  grant,  bargain,  sell,  convey,  and  confirm  unto  the  said  part     of  the 

second  part,  heirs  and  assigns,  the  following  described  lots,  tracts, 

or  parcels  of  property,  lying,  being,  and  situate  in  the  county  of 

and  State  of  to-wit : 

{Jiere  describe  the  premises  granted,  as  directed  in  Form  107). 

To  Have  and  to  Hold  the  premises  aforesaid,  wiih  all  and  singular  the 
rights,  privileges,  appurtenances,  and  immunilies  thereto  belonging,  or  in 
anywise  appertaining,  unto  the  said  part       of  the  second  part,  and  unto 
heirs  and  assigns  forever  :  the  said  {name  of  the  gratitor),  hereby 

covenanting  that  lawfully  seized  of  an  indefeasible  estate 

in  fee  in  the  premises  herein  conveyed  ;  that  ha         good  right  to 

convey  the  same  ;  that  the  said  premises  are  free  and  clear  of  any  encum- 
brances done  or  suffered  by  or  those  under  whom 
claim  ;  and  that  will  warrant  and  defend  the  title  to  the  said 
premises  unto  the  said  part  of  the  second  part,  and  unto  heirs 
and  assigns  forever,  against  the  lawful  claims  and  demands  of  all  persons 
whomsoever. 

In  Witness  Whereof,  The  said  part  of  the  first  part  ha  here- 

unto set  hand     and  seal     the  day  and  year  first  above  written. 

{Signatures.)      {Seals.) 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 


State  of  Missouri,  ^ 

'-  ss. 


County  of 


S 


On  this  day  of  18     ,  before  me  personally  appeared 

and  h         wi  , 

to  me  well  known  to  be  the  persons  described  in  and  who  executed  the 

foregoing  instrument,  and  acknowledged  that  they  executed  the  same  as 

their  free  act  and  deed. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
official  seal  at  my  office  in  the  day  and  year  first 

above  written. 

My  term  expires  18     . 

{Signature.)  {Seal.) 

{Official  designation.) 


474  DEEDS  CONVEYING  LAND. 

form  of  acknowledgment  if  the  grantor  is  single  and 

unmarried. 

State  of  Missouri,  ) 

y  ss. 
County  of  ) 

On  this  day  of  i8     ,  before  me  i^ersonally  appeared 

to  me  well  known  to  be  the  person     described  in 
and  who  executed  the  foregoing  instrument,  and  acknowledged  that 
executed  the  same  as  free  act  and  deed.     And  the  said 

further  declare  to  be  single  and  unmarried. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
official  seal,  at  my  office  in  the  day  and  year  first  above 

written. 

My  term  expires  i8    . 

{Signature)  {Seal.) 

{Official  designation.) 
(124.) 

BriefWarranty  Deed  in  use  in  "Wisconsin. 

This  Indenture,  Made  this  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 
between  {iiaim  a7id  occupation  of  the  grantor),  of  the  county  of 

State  of  of  the  first  part,  and  {name  and  occupation 

of  the  grantee)  of  the  counfy  of  and  State  of 

of  the  second  part.  Witnesseth,  That  the  said  part  of  the  first  part,  for 
and  in  consideration  of  the  sum  of  dollars,  to 

in  hand  paid  by  the  part  of  the  second  part,  the  receipt  of  which  is 
hereby  acknowledged,    ha  given,    granted,   bargained,    sold,    remised, 

released,  aliened,  and  confirmed,  and  by  these  presents  do       give,  grant, 
bargain,  sell,  remise,  release,  aliene,  and  confirm  unto  the  said   part 
of  the  second  part  heirs  and  assigns  forever,  the  following  described 

premises,  real  estate,  lying  and  being   in  the  county  of 
State  of  to-wit ;  {here  describe  the  land  granted,  as 

directed  in  Form  107). 

Together  with  all  and  singular,  the  hereditaments  and  appurtenances 
thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversion  or  rever- 
sions, remainder  and  remainders,  and  the  issues  and  profits  thereof,  and  all 
the  estate,  right,  title,  interest,  claim  or  demand    whatsoever 

of  the  said  part  of  the  first  part,  either  in  law  or  equity,  of  and  to  the 
above  bargained  premises,  with  the  hereditaments  and  appurtenances 
thereto  belonging. 

To  Have  and  to  Hold  the  said  premises  above  bargained,  and  described 
with  the  appurtenances,  unto  the  said  part        of  the  second  part, 


FORMS  OF  DEEDS.  475 

heirs  and  assigns  forever.     And  the  said  for 

and  heirs,  executors,  and  administrators,  do         covenant,   grant, 

bargain,  and  agree,  to  and  with  the  said  part         of  the  second  part, 
heirs   and  assigns,  that   at   the  time  of  ensealing  and   delivery  of  these 
presents,  well  seized  of  the  premises  above  conveyed,  as  of  good, 

sure,  perfect,  absolute,  and  indefeasible  estate  of  inheritance  in  the  law 
in  fee-simple,  and  ha  good  right,  full  power,  and  lawful  authority  to 
grant,  bargain,  sell,  and  convey  the  same  in  manner  and  form  aforesaid, 
and  that  the  same  is  free  and  clear  of  all  former  and  other  grants,  bar- 
gains, sales,  liens,  judgments,  taxes,  assessments,  and  incumbrances  of  what 
kind  and  nature  soever,  and  the  part  of  the  first  part,  the  above  bargained 
premises,  in  the  quiet  and  peaceable  possession  of  the  said  part  of  the 
second  part,  heirs  and  assigns,  against  all  and  every  per- 

son or  persons  lawfully  claiming  or  to  claim  the  whole  or  any  part  thereof, 
will  warrant  and  forever  defend. 

In  Witness  "WTiereof,  The  said  part         of  the  first  part  ha      hereunto 
set  hand     and  seal     the  day  and  year  first  above  written. 

{Signatures.)    (Seals.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  ) 

>•  ss. 
County  of  ) 

Be  it  B,emembered,  That  on  the  day  of 

A-D.  18         personally  came  before  me  the  above  named 
io  me  known  to  be  the  person         who  executed  the  foregoing  deed,  and 
acknowledged  the  execution  thereof  to  be  free  act  and  deed 

^or  the  uses  and  purposes  therein  mentioned. 

{Signature^ 

(125.) 
"Warranty  Deed  in  use  in  Pennsylvania. 

This  Indenture,  Made  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

(name,  residettce,  and  occupation   of  the  grantor)  and  {name  of  the 

wife  of  the  grantor),  parties  of  the  first  part,  and  {name,  residence. 

Old  occwpation  of  the  gratitee)  party  of  the  other  part,  Witnesseth,  That  the 
said  parties  of  the  first  part,  for  and  in  consideration  of  the  sum  of 
lawful  money  of  the  United  States  of  America,  unto  them  well  and  truly 
paid  by  the  said  party  of  the  second  part,  at  or  before  the  sealing  and 
delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
granted,  bargained,  sold,  aliened,  enfeoffed,  released,  and  confirmed,  and  by 
these  presents  do  grant,  bargain,  sell,  aliene,  enfeoff,  release,  and  confirm 
unto  the  said  {name  of  grantee)  his  heirs  and  assigns,  the  following 

described  parcel  of  land  ;  that  is  to  say,  {here  describe 

ca7'<ffully  4he  prejnises  granted,  as  directed  in  Form  107.) 


476  DEEDS  CONVEYING  LAND. 

Together  with  all  and  singular  the  ,  ways,  waters,  water 

courses,  rights,  liberties,  privileges,  hereditaments,  and  appurtenances  what- 
soever thereunto  belonging  or  in  any  wise  appertaining,  and  the  reversions 
and  remainders,  rents,  issues,  and  profits  thereof;  and  all  the  estate,  right, 
title,  interest,  property,  claim,  and  demand  whatsoever  of  the  said  parties  of 
the  first  part  in  law,  equity  or  otherwise  howsoever,  of,  in,  and  to  the  same 
and  every  part  thereof. 

To  have  and  to  hold  the  said  hereditaments  and  premises 

hereby  granted,  or  mentioned  and  intended  so  to  be,  with  the  appurtenances 
unto  the  said  ,  his  heirs  and  assigns,  to  and  for  the  only  proper 

use  and  behoof  of  the  said  ,  his  heirs  and  assigns  forever.     And  the 

said  parties  of  the  first  part,  their  heirs,  executors,  and  administrators,  do 
by  these  presents,  covenant,  grant,  and  agree  to  and  with  the  said  ,  his 

heirs  and  assigns,  that  they,  the  said  parties  of  the  first  part,  their  heirs,  all 
and  singular  the  hereditaments  and  premises  herein  above  described  and 
granted,  or  mentioned  and  intended  so  to  be,  with  the  appurtenances,  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns,  against  the  said 
parties  of  the  first  part,  and  their  heirs,  and  against  all  and  every  other  per- 
son or  persons  whomsoever  lawful  claiming  or  to  claim  the  same  or  any  pari 
thereof,  shall  and  will  warrant  and  forever  defend. 

In  Witness  Whereof,  The  said  parties  to  these  presents  have  hereunto 
Interchangeably  set  their  hands  and  seals,  the  day  and  year  first  abov* 
written. 

{Signatures^        {Seals.) 

Sealed  and  Delivered  in  Presence  of 

Received,  The  day  of  the  date  of  the  within  or  aforegoing  Indenture  of 
the  within  named 

On  the  day  of  Anno  Domini,  i8  before  me 

personally  appeared  the  above  named  {na?nes  of  grantor  and 

grantee)  and  in  due  form  of  law  acknowledged  the  above  Indenture  to  be 
their  and  each  of  their  act  and  deed,  and  desired  the  same  might  be  recorded 
as  such,  and  the  said  being  of  full  age  and  separate  and 

apart  from  said  husband  by  me  thereon  privately  examined,  and  the 

full  contents  of  the  above  Deed  being  by  me  first  made  known  unto 
did  thereupon  declare  and  say  that  did  voluntarily  and  of 

own  free  will  and  accord,  sign,  seal,  and  as  act  and  deed,  deliver 

the  above  written  Indenture,  Deed  or  Conveyance  without  any  coercion  or 
compulsion  of  said  husband. 

Witness  my  hand  and  seal,  the  day  and  year  aforesaid. 

{Signature.)    (Seal.) 
(126.) 

Full  "Warranty  Deed  in  use  in  New  Jersey. 
This  Indenture,  Made  the  day  of  in  the  yea; 

one  thousand  eight  hundred  and  between  [name,  residency 


FORMS  OF  DEEDS.  ^yj 

and  occupation  of  the  grantor  or  grantors)  part     of  the  first  part,  and 
{name,  residence,   and  occupation  of  the  grantee  or  grantees)  part      of  the 
second  part,  witnesseth,  that  the  said  part     of  the  first  part,  for  and  in  con- 
sideration of  the  sum  of  lawful  money  of  the  United  States 
of  America,  to                 in  hand  paid  by  the  said  part         of  the  second  part, 
at  or   before   tb.e   ensealing  and   delivery   of    these   presents,   the  receipt 
whereof  is  hereby  acknowledged,  and  the   said  part      of  the  second  part, 
heirs,  executors,  and  administrators,  forever  released  and  discharged 
from  the  same  by  these  presents,    ha     granted,  bargained,  sold,  aliened, 
remised,  released,  conveyed,  and  confirmed,  and  by  these  presents  do 
grant,  bargain,  sell,  aliene,  remise,  release,  convey,  and  confirm  unto  the  said 
part       of  the  second  part,  and  to             heirs  and  assigns  forever,  all 
(Jiere  describe    carefully   the   land  or   premises  granted,   substantially  as 
directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof 
And  also,  all  the  estate,  right,  title,  interest,  property-, 

possession,  claim,  and  demand  whatsoever,  as  well  in  law  as  in  equity,  of  tha 
said  part  of  the  first  part,  of,  in,  or  to  the  above  described  premises,  and 
every  part  and  parcel  thereof,  with  the  appurtenances. 

To  have  and  to  hold  all  and  singular  the  above-mentioned  and  describeC 
premises,  together  with  the  appurtenances,  unto  the  said  part  of  the  second 
part,  heirs  and  assigns,  to  own  proper  use,  benefit,  and 

behoof  forever. 

And  the  said  for  heirs,  execfitors,  and  administra- 

tors do  covenant,  grant,  and  agree,  to  and  with  the  said  part  of  the 
second  part,  heirs  and  assigns,  that  the  said  at  the  time 

of  the  sealing  and  delivery  of  these  presents,  lawfully  seized  in 

of  a  good  absolute  and  indefeasible  estate  of  inheritance  in  fee- 
simple,  of  and  in  all  and  singular  the  above  granted,  bargained,  and  de- 
scribed premises,  with  the  appurtenances,  and  ha  good  right,  full  power,- 
and  lawful  authority  to  grant,  bargain,  sell,  and  convey  the  same  in  mannei 
and  form  aforesaid. 

And  that  the  said  part     of  the  second  part,  heirs  and  assigns, 

shall  and  may  at  all  times  hereafter,  peaceably  and  quietly  have,  hold,  use, 
occupy,  possess,  and  enjoy,  the  above  granted  premises,  and  every  part  and 
parcel  thereof,  with  the  appurtenances,  without  any  let,  suit,  trouble,  moles- 
tation, eviction,  or  disturbance,  of  the  said  part  of  the  first  part, 
heirs  or  assigns,  or  of  any  other  person  or  persons  lawfully  claiming,  or  to 
claim  the  same. 

And  that  the  same  now  are  free,  clear,  discharged,  and  unincumbered  of 
and  from  all  former  and  other  grants,  titles,  charges,  estates,  judgments, 
taxes,  assessments,  and  incumbrances  of  what  nature  or  kind  soever. 

And  9IS0,  that  the  said  part      of  the  first  part,  and  heirs,  and  all 


478  DEEDS  CONVEYING  LAND. 

and  every  otlicr  person  or  persons  whomsoever  lawfully  or  equitably  deriving 
any  estate,  right,  title,  or  interest,  of,  in,  or  to  the  hereinbefore  granted 
premises,  by,  from,  under,  or  in  trust  for  them,  shall  and  will  at 

any  time  or  times  hereafter,  upon  the  reasonable  request,  and  at  the  proper 
costs  and  charges  in  the  law,  of  the  said  part  of  the  second  part, 
heirs  and  assigns  ;  make,  do,  and  execute,  or  cause  or  procure  to  be  made, 
done,  or  executed,  all  and  every  snch  further  and  other  lawful  and  reasonable 
acts,  conveyances,  and  assurances  in  the  law  for  the  better  and  more 
effectually  vesting  and  confirming  the  premises  hereby  intended  to  be 
granted,  in  and  to  the  said  part     of  the  second  part,  heirs  and  assigns 

forever,  as  by  the  said  part     of  the  second  part,  heirs  or  assigns,  or 

counsel  learned  in  the  law,  shall  be  reasonably  devised,  advised, 
or  required.     And  the  said  heirs,  the  above  described 

and  hereby  granted  and  released  premises,  and  every  part  and  parcel  thereof, 
with  the  appurtenances,  unto  the  said  part     of  the  second  part,  heirs 

and  assigns,  against  the  said  part     of  the  first  part,  and  heirs,  and 

against  all  and  every  person  and  persons  whomsoever,  lawfully  claiming  of 
to  claim  the  same,  shall  and  will  warrant,  and  by  these  presents  forever 
defend. 

In  "Witness  Whereof,  the  said  part      of  the  first  part  ha  hereunto 

Bet  hand  and  seal     the  day  and  year  first  above  written. 

{Signatures.)         {Seals.) 
Signed,  Sealed^  atid  Delivered  in  the  Presence  of 

State  OF  ,") 

COUXTY.        ) 

Be  it  Remembered,  Tliat  on  this  day  of  in  the 

year  one  thousand  eight  hundred  and  before  me 

personally  appeared  who,  I  am  satisfied,  the 

grantor     in  the  within  Indenture  named  ;  and  I  having  first  made  known  to 
the  contents  thereof,        did  acknowledge  that 

signed,  sealed,  and  delivered  the  same  as  voluntary  act  and 

deed  for  the  uses  and  purposes  therein  expressed. 

And  the  said  being  by  me  privately  examined,  separate 

and  apart  from  said  husband     did  further  acknowledge  that 

signed,  sealed,  and  delivered  the  same  as  voluntary  act 

and  deed  freely,  and  witliout  any  fear,  threats,  or  compulsion  of  or  from 
said  husband. 

(127.) 
A  Brief  "Warranty  Deed  in  iise  in  Ohio. 

To  all  people  to  whom  these  Presents  shall  come,  Greeting  :   Know 

ye,  that  I  {or  we),  {name,  residence,  and  occupation  of  grantor)  for  the 

consideration  of  received  in  full  satisfaction  of 


FORMS  OF  DEEDS.  ^yg 

{tiainc,  j-es2dcnct\  and  occupation  of  grantee)  do  give,  grant,  bargain,  sell,  and 
confirm  unto  the  said  the  following  described  tract  or 

lot  of  land,  situate  in  the  of  in  the  County  of 

and  State  of  {here  describe  carefully  the  land  or 

premises  granted,  as  directed  in  Form  107)  be  the  same  more  or  less,  but 
subject  to  all  legal  highways. 

To  have  and  to  hold  the  above  granted  and  bargained  premises,  with 
the  appurtenances  thereto  belonging,  unto  the  said  {name  of 

grantee)  heirs  and  assigns  forever,  to  {him,  or  them)  and  {his,  or  their)  own 
proper  use  and  behoof.     And  I  {or  lue)  the  said  {name  of  grantor,  or 

grantors)  do         for  heirs,  executors,  and  administrators,  covenant 

with  the  said  heirs  and  assigns,  that  at  and  until  the 

ensealing  of  these  presents,  well  seized  of  the  premises,  as  a 

good  and  indefeasible  estate  in  fee-simple,  and  have  good  right  to  bargain 
and  sell  the  same  in  manner  and  form  as  above  written,  and  that  the  same 
be  free  from  all  encumbrance  whatsoever.     And  furthermore, 
the  said  do  by  these  presents  bind  heirs  forevei 

to  warrant  and  defend  the  above  granted  and  bargained  premises  to 
the  said  heirs  and  assigns,  against  all  lawful  claims  and 

demands  whatsoever.     And  1,  (wife  of)  the  said  do  hereby 

remise,  release,  and  forever  quitclaim  unto  the  said  heirs  and 

assigns,  all  my  right  and  title  of  dower  in  the  above  described  premises. 

In  Witness  Whereof,  have  hereunto  set  hand    and  seal 

t!ie  day  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 

{Signatures.)         {Seals.) 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 

The  State  of  Ohio,  > 

'»  \  ss. 
County  of  ) 

187 
Before  me,  a  within  and  for  said  County,  personally 

appeared  the  said  and  acknowledged  that  did 

sign  and  seal  the  foregoing  instrument,  and  that  the  same  is  free 

act  and  deed. 

I  further  Certify  that  I  did  examine  the  said  *  separate 

and  apart  from  her  said  husband,  and  did  then  and  there  make  known 
to  her  the  contents  of  the  foregoing  instrument,  and  upon  that  examina- 
tion she  declared  that  she  did  voluntarily  sign,  seal,  and  acknowledge  the 
same,  and  that  she  was  still  satisfied  therewith. 

In  Testimony  Whereof,  I  hereunto  set  my  hand  and  official  seal  this 
day  of  A.D.   18 

{Signature.) 


48o  DEEDS  CONVE  YING  LAND. 

(128.) 
Brief  "Warranty  Deed  in  use  in  Minnesota. 

This  Indenture,  Made  this  day  of  A.D. 

one  thousand  eight  hundred  and  between  {name  and occtipation 

of  the  grantor)  of  the  County  of  and  State  of 

part       of  the  first  part,  and  {name  and  occupation  of  the  grantee) 

of  the  County  of  and  State  of 

part       of  the  second  part, 

Witnesseth,  That  the  said  part     of  the   first  part,   in  consideration  of 
the  sum  of  dollars,  to  in  hand  paid  by  the 

part     of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged,  do 
by  these  presents  grant,  bargain,  sell,  and  convey,  to  the  said  part     of  the 
second  part,         heirs  and  assigns  forever,  all  the  following  described  piece 
or  parcel     of  land,  lying  and  being  in  the  County  of 

and  State  of  Minnesota,  to  wit  {here  describe  carefully  the  land  or  premises 
granted,  as  directed  iji  Eorm  107). 

To  Have  and  to  Hold  the  Same,    Together   with   all   the   heredita- 
ments and  appurtenances  thereunto  in  any  wise  appertaining.    And  the  said 
part     of  the  first  part,  do     covenant  with  the  said 
part     of  the  second  part  heirs  and  assigns,  as  follows  :  That 

lawfully  seized  of  said  premises,  in  fee-simple,  and  that 
good  right  and  power  to  grant  and  convey  the  same  ;  that  the  same  free 

from  all  incumbrances,  and  that  the  said  part       of  the  second  part, 
heirs  and  assigns,  shall  quietly  enjoy  and  possess  the  same  ;  and  that  the 
said  part       of  the  first  part  will  warrant  and  defend  the  title  to  the  same 
against  all  lawful  claims. 

In  Testimony  Whereof,  The  said  part      of  the  first  part  hereunto  set 
hand      and  seal      ,  the  day  and  year  above  written. 

{Signat7ires.)     {Seals.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  Minnesota,  ") 

>  ss. 
County  of  ) 

On  this  da.yof  A.  D.  18        ,  before  me  the 

undersigned  personally  came  to  me  personally  known 

to  be  the  identical  individual     described  in,  and  who  executed  the  foregoin^; 
deed,  and  acknowledged  that  executed  the  same  freely  and  volur.^ 

tarily,  for  the  uses  and  purposes  therein  expressed. 

{Signature.) 


FORMS  OF  DEEDS. 


481 


(129.) 
"Warranty  (or  Guaranty)  Deed  in  use  in  Louisiana. 
STATE  OF  LOUISIANA, 

Parish  axd  City  of  New  Orleans. 
Be  it  Known,  That  on  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  and 

of  the  Independence  of  the  United  States  of  America,  tlie  one  hundred  and 
,  before  me,  ,  a  Notary  Public  in 

and  for  the  Parish  of  Orleans,  State  of  Louisiana,  duly  commissioned  and 
qualified,  and  in  the  presence  of  the  witnesses  hereinafter  named  and  under- 
signed, personally  came  and  appeared  {name,  residence,  and  occupation  of 
grantor  or  grantors)  who  declared  that  for  the  consideration  and  on  the  terms 
and  conditions  hereinafter  expressed  (he  or  they)  by  these  presents  grant, 
bargain,  sell,  convey,  transfer,  assign,  and  set  over,  with  a  full  guarantee 
against  all  troubles,  debts,  mortgages,  liens,  evictions,  alienations,  or  other 
incumbrances  of  every  nature  and  kind  whatsoever,  unto  {name,  7-esidence, 
and  occupation  of  grantee  or  grantees)  here  present  heirs  and  assigns, 

and  acknowledging  delivery  and  possession  thereof. 

Lot  of  land,  together  with  th.e  improvements 
thereon,  and  all  rights,  ways,  privileges,  and  appurtenances  thereunto  belong- 
ing or  in  any  wise  appertaining,  situate  in  the 

{he?-e  describe  the  land  or  pronises granted,  fully  and  accurately  and sjibstaii' 
tially,  as  directed  in  Form  107.) 

To  Have  and  to  Hold  the  said  property  and  appurtenances  unto  the 
said  purchaser     ,  heirs  and  assigns  forever. 

And  the  said  vendor     hereby  bind  and  heirs  forever 

to  warrant  and  defend  the  property  and  appurtenances  herein  conveyed, 
against  all  legal  claims  and  demands  whatever. 

The  said  vendor  moreover  transfer  unto  the  said  purchaser  all  the 
rights  and  actions  of  warranty  to  which  or  may  be  entitled, 

against  all  the  former  proprietors  of  the  property  herein  conveyed,  subro- 
gating said  purchaser      to  the  said  right  and  actions  to  be  by 
enjoyed  and  exercised  in  the  same  manner  as  they  might  have  been  by  the 
said  vendor. 

This  Sale  is  Made  and  Accepted  for  and  in  consideration  of  the  price 
and  sum  of 

And  in  order  to  secure  the  punctual  payment  of  the  said  promissor^r 
note  ,  at  maturity,  as  well  as  of  all  interest  to  accrue  thereon,  and  in  order, 
furthermore,  to  secure  the  payment  and  reimbursement  of  any  and  all  law- 
yers' fees  that  may  be  expended  or  incurred  in  the  event  of  suit  being  insti- 
tuted to  enforce  the  payment  of  said  note  in  principal 
or  interest,  or  any  part  thereof  (which  lawyers'  fees,  however,  are  fixed  at 
five  per  cent,  on  the  amount  so  in  suit,  and  said  purchaser  consent  and 
31 


482  DEEDS  CONVEYING  LAND. 

agree  to  pav  and  a'low  the  same),  the  said  purchaser  hereby  specially 
mortgage  ,  affect  ,  and  hypothecate  the  herein  described  and  conveyed 
property  unto  and  in  favor  of  the  said  vendor  ,  as  well  as  of  any  and  all 
future  owner  or  owners  of  the  said  note  ;  promising 

and   binding  and  heirs   not   to   alienate,   deteriorate, 

nor  encumber  the  said  property  to  the  prejudice  of  this  mortgage,  nor  of  the 
special  lien  and  vendor's  privilege  which  the  said  vendor      herebj'   retain 
on  said  property  until  the  full  and  final  payment  of  said  note. 

And  the  said  declared  that  do 

by  these  presents,  bind  and  obligate  to  cause  all  and  singu- 

lar the  buildings  and  improvements  on  the  herein  described  and  conveyed 
property  to  be  insured  and  kept  insured  against  the  risk  of  fire,  by  one 
of  the  insurance  companies  of  this  city,  in  the  sum  of 
dollars,  until  the  full  and  final  payment  of  the  afore  described  , 

and  to  transfer  and  deliver  unto  the  said  vender  or  any  and  aU  future 
owner  or  owners  of  the  said  the  policy  or  policies  of 

the  said  insurance  or  insurances  ;  in  default  whereof,  said  vendor  or  anj 
and  all  future  owner  or  holders  of  said  is  and  are 

hereby  authorized  to  cause  such  insurance  or  insurances  to  be  made  and 
effected  at  the  cost,  charge,  and  expense  of  the  said  purchaser  .  But  this 
clause  shall  not  be  construed  as  obligatory  on  such  holder  or  holders,  or  as 
making  them  hable  for  any  loss,  damage,  or  injury  which  may  result  from 
the  non-insurance  of  said  buildings. 

According  to  the  several  certificates  of  the  Recorder  of  Mortgages  and 
the  Register  of  Conveyances  in  and  for  this  City  and  Parish,  bearing  even 
date  herewith,  and  hereto  annexed  for  reference,  it  appears  that  the  said 
vendor  has  not  alienated  the  herein  described  and  conveyed  property, 
and  that  the  same  is  free  from  all  mortgages  or  other  incumbrances  in  his 
name. 

And  now  to  these  Presents,  personally  came  and  appeared,  Madam 

who  after  having  taken  cognizance  of  the 
foregoing  act,  which    I,  the   said    Notary,    carefully  read   and   explained  to 

declared  and  said  that  approve        and  ratif 

the  same,  and  that  it  is  wish  and  intention  to  release  in  favor  of 

the  said  purchaser  ,  the  property  herein  described,  from  the  matrimonial, 
dotal,  paraphernal,  and  other  rights,  and  from  any  claims,  mortgages,  or 
privileges  to  which  may  be  entitled,  whether  by  virtue  of  marriage 

with  said  husband,  or  otherwise. 

"Whereupon,  I,  the  said  Notary,  did  inform  the  said 
apart,  and  out  of  tlie  presence  and  hearing  of  her  husband,  and  before  re- 
ceiving her  signature  hereto,  that  by  the  laws  of  this  State,  the  wife  has  a 
legal  mortgage  on  the  property  of  her  husband  :  First.  For  the  restitution 
of  her  dowry,  and  for  the  reinvestment  of  the  dotal  property  sold  by  her 
husband,  and  which   she  brought  in  marriage,  reckoning  from  the  celebra- 


FORMS  OF  DEEDS.  4.93 

tion  of  the  maiTia';e.  Secondly.  For  the  restitution  and  reinvestment  of  the 
dotal  property  by  her  acquired  since  marriage,  wliether  by  succession  or 
donation,  from  the  day  the  succession  was  opened  or  the  donation  perfected. 
Thirdly.  For  nuptial  presents.  Fourthly.  For  debts  by  her  contracted 
with  her  husband.  And  Fifthly.  For  the  amount  of  her  paraphernal  prop- 
erty alienated  by  her  and  received  by  her  husband,  or  otherwise  disposed  of 
for  his  individual  interest :  That  in  malving  her  intended  renunciations  she 
would  deprive  herself  irrevocably  and  forever  of  all  the  rights  of  reclamation 
against  the  property  herein  described,  whether  under  mortgage  privilege  cr 
otherwise. 

And  the  said  did  thereu^ion  declare  unto  me.  Notary, 

that  she  was  fully  aware  of  and  acquainted  with  the  nature  and  extent  of  the 
matrimonial,  dotal,  p.Traphernal,  and  other  rights  and  privileges  thus  secured 
to  her  by  the  law  on  the  property  of  her  said  husband,  and  that  she  never- 
theless did  persist  in  her  intention  of  renouncing,  and  does  formally  re- 
nounce, not  only  all  the  rights,  claims,  and  privileges  hereinbefore  enumerated 
and  described,  but  all  others  of  any  nature  and  kind  whatever  to  which  she 
is,  or  may  be  entitled,  by  any  laws  now  or  heretofore  in  force  in  the  State  of 
Louisiana. 

And  the  said  being  now  present,  aiding  and  authorizing 

the  said  in  the  execution  of  these  presents,  the  said 

did  again  declare  that  did  and  do       hereby  make  a  formal  renunciation 

and  relinquishment  of  all  said  matrimonial,  dotal,  paraphernal,  and 

other  riglits,  claims,  and  privileges,  in  favor  of  said  purchaser     ,  binding 

and  heirs  at  all  times  to  sustain  and  acknowledge  the  validity 

of  this  renunciation. 

Thus  Done  and  Passed,  in  my  office,  at  New  Orleans  aforesaid,  in  the 
presence  of  and  witnesses, 

both  of  this  city,  who  hereunto  sign  their  names  with  the  parties,  and  me, 
the  said  Notary,  the  day  and  date  aforesaid. 

{Signattires)         (Seals) 

(130.) 

Deed  of  G-rant  and  Quitclaim  of  Property  and  Mining 

Rights,  in  use  in  California  and  other 

Mining  States. 

This  Indenture,  Made  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  between 

{name,  residence,  and  occupation  of  the  grantor)  the  party  of  the  first  part, 
and  {name,  residence,  and  occupation  of  the  grantee)  the  part  of  the  second 
part,  Witnesseth,  that  the  said  part  of  the  first  part,  for  and  in  considera- 
tion of  the  sum  ot  dollars,  of  the 
United  States  of  America,  to  in  hand  paid  by  the  said  part 
of  the   second   part,  the   receipt   whereof   is  hereby  acknowledged,  ha 


484  DEEDS  CONVEYING  LAND. 

granted,  bargained,  sold,  remised,  released,  and  forever  quitclaimed,  and  by 
these  presents  do  grant,  bargain,  sell,  remise,  release,  and  forever  quit- 
claim unto  the  said  part  of  the  second  part  and  to  heirs  and 
assigns  {here  describe  carefully  the  latid  or  premises  granted,  as  directed  in 
Form  107). 

Together  with  all  the  dips,  spurs,  and  angles,  and  also  all  the  metals, 
ores,  gold,  and  silver-bearing  quartz,  rock,  and  earth  therein  ;  and  all  the 
rights,  privileges,  and  franchises  thereto  incident,  appendant,  and  appur- 
tenant, or  therewith  usually  had  and  enjoyed  ;  and,  also,  all  and  singular  the 
tenements,  hereditaments,  and  appurtenances  thereto  belonging,  or  in  any 
wise  appertaining,  and  the  rents,  issues,  and  profits  thereof;  and,  also,  all 
the  estate,  right,  title,  interest,  property,  possession,  claim,  and  demand 
whatsoever,  as  well  in  law  as  in  equity,  of  the  said  part  of  the  first  part, 
of,  in,  or  to  the  said  premises,  and  every  part  and  parcel  thereof,  with  the 
appurtenances. 

To  Have  and  to  Hold,  all  and  singular  the  said   premises,    together 
with  the  appurtenances  and  privileges  thereto  incident,  unto  the  said  part 
of  the  second  part,  heirs  and  assigns  forever. 

In  "Witness  'Whereof,  the  said  part  of  the  first  part,  ha  hereunto 
set  hand       and  seal       the  day  and  year  first  above  written. 

{Signatures^    {Seals.) 

Signed,  Sealed,  and  Delivered  in  the  Presetice  of 

(131.) 
"Warranty  Deed  made  under  the  Statute  of  Illinois. 

This  Indenture  "Witnesseth,  That  the  grantor     ,  {naine  and  occupation 
of  the  grantor)  of  the         {residence  of  the  grantor)  in  the  County  of 
and  State  of  for  and  in  consideration  of  the  sum  of 

dollars,  in  hand  paid.  Convey    and  Warrant     to  {name  and  occupatiofi- 

of  grantee)  of  the  {?-esidence  of  grantee)  County  of  and  State 

of  the  following  described  real  estate,  to  wit,  {here  describe 

carefully  the  land  or  premises  granted,  as  directed  i7i  Form  107)  situated  in 
the  County  of  in  the  State  of  Illinois,  hereby  releasing  and 

waiving  all  rights  under  and  by  virtue  of  the  Homestead  Exemption  Laws 
of  this  State. 

Dated  this  day  of  A.D.  18     . 

{Signatures^     {Seals) 


State  of 


>-ss. 


County  of 

I,  in  and  for  said  County,  in  the  State  aforesaid,  do  hereby 

certify,  that  personally  known  to  me  to  be  the  same  person 

whose  name  subscribed  to  the  foregoing  instrument,  appeared 

before  me  this  day  in  person,  and  acknowledged  that      he      signed,  sealed, 
and  delivered  the  said  instrument  as  free  and  voluntary  act,  for  the  uses 


FORMS  OF  DEEDS. 


485 


and  purposes  therein  set  forth,  including  the  release  and  waiver  of  the  right 
of  homestead. 

Given  under  my  hand  and  seal,  this  day  of  18     .      ' 

{Signature^ 

(132.) 

"West  Virginia  Statutory  Deed,  conveying  Grantor's  entire 

Interest. 
This  Deed,  Made  the  day  of  in  the  year  between 

(jfiere  insert  names  of  parties) 

Witnesseth,  That,  in  consideration  of  (Jure  state  the  consideration),  the 
said  doth  grant  unto  the  said  all,  etc.  {Jiere  describe  the 

property  and  insert  covenants,  or  any  other  provisions). 

Witness  the  following  signature  and  seal. 

{Signature)    {Seal.) 

Form  of  Acknowledgment. 

State  of  West  Virginia,  County  of  , 

to  wit : 

I,  ,  a  of  said  county,*  do  certify  that  ,  and  , 

his  wife,  whose  names  are  signed  to  the  writing  above  (or  hereto  annexed), 
bearing  date  the  day  of  ,  18      ,  have  this  day  acknowledged  the 

same  before  me  in  my  said  county. 

Given  under  my  hand  this  day  of  ,18 

Justice  (or  Notary). 

[If  only  the  wife's  acknowledgment  is  to  be  taken,  after  the(*)  insert 
the  following:]     do  certify  that  ,  the  wife  of  whose  names  are 

signed  to  the  writing  above  (or  hereto  annexed),  bearing  date  the  day 

of  ,  18       ,  has  this  day  acknowledged  the  same  before  me  in  my  said 

county^ 

Given  under,  etc. 


^86  DEEDS  CONVEYING  LAND. 

(132a.) 
Warranty  Deed  under  Statute  of  Maryland. 

This  Deed,  Made  this  day  of  in  the  year 

by  me  {/la/iie  of  grantor) 

Witnesseth,  That,  in  consideration  of  I,  the  said 

do  grant  unto  all  that  {descriptio7t  of  prope'rty).     And  I,  the  said 

covenant  that  I  will  warrant  generally  the  property  hereby  con- 
veyed, and  that  the  said  shall  quietly  enjoy  the  same. 
Witness  my  hand  and  seal. 
Test.  {^Signature.)     {Seal.) 
State  of  Maryland,  ^ 

^  ss. 
County  of  ) 

I  hereby  certify  that  on  this  day  of  ,  in  the  year  , 

before  the  subscriber,  {here  give  title  of  officer  taking  acknowledgtnent),  per 
sonally  appeared  ,  and  acknowledged  the  foregoing 

deed  to  be  his  act. 

{Signature  and  title.) 
(132b.) 
"Warranty  Deed  in  use  in  South  Carolina. 
THE  STATE  OF  SOUTH  CAROLINA. 

Know  all  Men  by  these  Presents,  That  I,  A.  B.,  of  in 

the  State  aforesaid,  have  granted,  Ijargained,  sold,  and  released,  and  by  these 
presents  do  grant,  bargain,  sell,  and  release  unto  C.  D.,  of  all  that 

{here  describe  the  premises) 

Together  with  all  and  singular  the  rights,  members,  hereditaments,  and 
appurtenances  to  the  said  premises  belonging,  or  in  any  wise  incident  or 
appertaining. 

To  Have  and  to  Hold  all  and  singular  the  premises  before  mentioned 
unto  the  said  C.  D.,  his  heirs  and  assigns  forever.  And  I  do  hereby  bind 
myself,  my  heirs,  executors,  and  administrators,  to  warrant  and  forever 
defend  all  and  singular  the  said  premises  unto  the  said  C.  D.,  his  heirs  and 
assigns,  against  myself  and  my  heirs,  and  against  every  person  whomsoever 
lawfully  claiming  or  to  claim  the  same  or  any  part  thereof. 

Witness  my  hand  and  seal  this  day  of  in  the  year 

of  our  Lord  and  in  the        \  year  of  the  independence  of  the 

United  States  of  America. 

{Signature.)     [l.s.] 
Signed.,  Sealed,  and  Delivered  in  the  presetice  of 

The  State  of  South  Carolina,  | 
County.  \ 
Personally  appeared  before  me,  and  made  oath  that  saw  the 

within  named  sign,  seal,  and  as  act  and  deed,  deliver  the  within 

written  deed ;  and  that  with  witnessed  the  execution  thereof.    • 

S worn  to  before  me,  this  day  of  i8     . 

{Signature.) 


FORMS  OF  DEEDS.  ^Sj 

The  State  of  South  Carolina,' 


County. 

I,  do  hereliy  certify  unto  all  whom  it  may  concern,  t'vit 

Mrs.  wife  of  the  within  named  did  this  d.iy 

appear  before  me,  and  upon  being  privately  and  separately  examined  by  me, 
did  declare  that  she  does  freely,  voluntarily,  and  without  any  manner  of 
compulsion,  dread,  or  fear  of  any  person  or  persons  whomsoever,  renounce, 
release,  and  forever  relinquish  unto  the  within  named  heirs 

and  assigns,  all  her  interest  and  estate,  and  also  all  her  right  and  claim  c  £ 
dower  of,  in,  or  to  all  and  singular  the  premises  within  mentioned  and 
released. 

Given  under  my  hand  and  seal,  this  day  of 

Anno  Domini  i8     . 

{Signature^i 

(133.) 
Brief  "Warranty  Deed  in  use  in  California. 

This  Indenture,  Made  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

{name,  residettce,  atid  occupation  of  grantor  or  gj'aniors),  part        of  the 
first  part,  and  {iiauie,  residence,  and  occupation  of  the  grantee  o.' 

grantees),  the  part  of  the  second  part,  wilnesseth,  that  the  said  part  oV 
the  first  part,  for  and  in  consideration  of  the  sum  of  dollars 

of   the   United    States  of    America,   to  in   hand   paid   by  the    said 

part  of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged, 
do  by  these  presents,  grant,  bargain,  sell,  convey,  and  confirm  unto 

the  said  part     of  the  second  part,  and  to  heirs  and  assigns,  forever 

{here  describe  carefully  the  latid  or  premises  granted,  substantially  as 
directed  in  Fortn  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging,  or  in  any  wise  appertaining,  and  the  rents, 
issues,  and  profits  thereof. 

To  Have  and  to  Hold   all    and    singular   the    above   mentioned   and 
described  premises,  together  with  the  appurtenances,  unto  the  said  part 
of   the   second   part,  and  to  heirs  and  assigns  forever.     And   the 

said  part      of  the  first  part,  and  heirs,  the  said  premises,  in  the 

quiet  and  peaceable  possession  of  the  said  part     of  the  second  part, 
heirs  and  assigns,  against  the  said  part        of  the  first  part,  and  heirs, 

and  against  all  and  every  person  and  persons  whomsoever,  lawfully  claiming 
or  to  claim  the  same,  shall  and  will  warrant,  and  by  these  presents  forever 
defend. 

In  Witness  "Whereof,  the  said  part     of  the  first  part  ha       hereunto  set 
hand    and  seal    the  day  and  year  first  above  written. 

{Signatu?-es.)     {Seals.) 
Signed,  Sealed,  and  Delivered  in  the  Presence  of 


488  DEEDS  CONVEYING  LAND. 

(134.) 

Trust  Deed,  by  way  of  Mortgage,  in  use  in  Virginia  and 
"West  Virginia. 

This  Deed,  made  this  day  of  in  the  year  i8    , 

between  {name,  7'esidence,  and  occupation  of  grantor  or  grantors) 

part     of  the  first  part,  and  {jia^fie,  residence,  and  occupation  of  the 

grantee  or  grantees)  part  of  the  second  part,  witnesseth  :  That  the  said 
part  of  the  first  part  do  grant  unto  the  said  part  of  the  second  part, 
the  following  property,  to  wit,  {iiere  describe  carefully  the  land 

or  premises  granted,  as  directed  in  Form  107). 

In  Trust  to  secure  to  of  the  the  payment  of  the 

sum  of  in  the  event  that  default  shall  be  made  in  the  payment 

of  either  of  the  above-mentioned  as  they  become  due  and  payable, 

then  the  trustees,  or  either  of  them,  on  being  required  to  do  so  by 
rxecutors,  administrators,  or  assigns,  shall   sell  the  property  hereby  con- 
veyed.    And  it  is  covenanted  and  agreed  between  the  parties  aforesaid,  that 
in  case  of  a  sale  the  same   shall  be  made  after  first  advertising  the  time, 
place,  and  terms  thereof,  for  days,  in  some  newspaper  published  in 

I'ne  ,  and  upon  the  following  terms,  to  wit :  for  cash  as  to  so 

»nuch  of  the  proceeds  as  may  be  necessary  to  defray  the  expenses  of  execut- 
ing this  trust,  the  fees  for  drawing  and  recording  this  deed,  if  then  unpaid, 
und  to  discharge  the  amount  of  money  then  payable  upon  the  said 
and  if  at  the  time  of  such  sale  any  of  the  said  shall  not  have 

become  due  and  payable,  and  the  purchase  money  be  sufficient,  such  part  or 
parts  of  the  said  purchase  money  as  will  be  sufficient  to  pay  off  and  dis- 
charge such  remaining  shall  be  made  payable  at  such  time  or 
times  as  the  said  remaining  will  become  due  ;  the  payment  of 
which  part  or  parts  shall  be  properly  secured  ;  and  in  case  the  net  proceeds 
of  sale  shall  be  insufficient  to  pay  off  all  of  the  said  in  full,  then 
the  same  shall  be  applied  towards  the  payment  of  the  said  in 
the  order  of  their  maturity,  intending  hereby  to  create  a  priority  in  favor  of 
each  of  said  over  any  other  which  may  become 
due  and  payable  subsequent  thereto  ;  and  if  there  be  any  residue  of  said 
purchase  money,  the  same  shall  be  made  payable  at  such  time,  and  secured 
in  such  manner  as  the  said  p-^rt  of  the  first  part  executors,  adminis- 
In  such  manner  as  the  said  part  of  the  first  part  executors,  adminis- 
trators, or  assigns  shall  prescribe  and  direct,  or  in  case  of  failure  to  give 
such  direction,  at  such  time  and  in  such  manner  as  the  said  Trustees,  or 
either  of  them,  shall  think  fit.  The  said  part  of  the  first  part  covenant  to 
pay  all  taxes,  assessments,  dues,  and  charges  upon  the  said  property  hereby 
conveyed,  so  long  as  or  heirs  or  assigns  shall  hold  the 
same,  and  hereby  waive  the  benefit  of  Homestead  Exemption 
as  to  the  debt       secured  by  this  deed. 

If  no  default  shall  be  made  in  the  payment  of  either  of  the  above-men- 
tioned then  upon  the  request  of  the  part       of  the  first  part,  a 


FORMS  OF  DEEDS. 


489 


good  and  sufficient  deed  of  release  shall  be  executed  to 
at  own  proper  costs  and  charges. 

Witness  the  following  signature     and  seal     . 

(Signatures.)      {Seals.) 
State  of  Virginia. 

of  to  wit: 

I,  for  the  aforesaid,  in  the  State  of 

Virginia,  do  certify  that  whose  name  signed  to 

the  writing  above,  bearing  date  on  tlie  day  of 

iS     ,  ha     acknowledged  the  same  before  me  in  my  aforesaid. 

Given  under  my  hand,  this  day  of  18     . 

Memo. — To  be  acknowledged  before  a  Justice  or  Notary  Public. 

State  of  Virginia, 

of  to  wit : 

for  the  of  in  the  State  of  Virginia,  do  certify  that 

the  wife  of  whose  names  are  signed  to  the 

\i  riting  above,  bearing  date  on  the  day  of 

iS     ,     personally  appeared  before  in  the 

aforesaid,  and  being  examined  by  privily  and  apart  from  her 

husband,  and  having  the  writing  aforesaid  fully  explained  to  her,  she,  the 
said  acknowledged  the  said  writin<>;  to  be  her  act,  and 

declared  that  she  had  willingly  executed  the  same,  and  does   not  wish  to 
retract  it.     Given  under  hand      this  day  of  18     . 

Memo. — Before  tivo  fitsiices  or  a  Notary  Public. 

(135.) 

Deed  of  Trust  to  Secure  a  Debt,  Payable  in  Gold  Coin,  in 
Use  in  Caliiornia. 

This  Deed  of  Trust,  made  this  day  of 

A.  D.  eighteen  hundred  between  {narne,  residencei 

and  occupation  of  the  debtor  and  grantor)  of  the  first  part, 

and  {na7Jie,  residence,  and  occupation  of  the  grajitee  or  grantees,  trustee 

or  trtesfees)  of  part      of  the  second  part,  and  (jiame, 

residence,  and  occtipation  of  creditor,  for  "wliose  security  tJ:e  trust  is  created) 
of  the  third  part,  witnesseth  : 

"Whereas,  the  said  ha      borrowed  and  received  of  the 

said  in  gold  coin  of  the  United  States,  the  sum  of 

dollars,  and  ha      agreed  to  repay  the  same  on  the 
day  of  A.  D.  eighteen  hundred  and  to  the 

in  like  gold  coin,  with  interest,  according  to  the  terms  of  ?, 
certain  promissory  note,  of  even  date  herewith,  executed  and  delivered  there- 
for by  the  said 

Now  this  Indenture  Witnesseth,  That  the  said  part     of  the  first  part, 


490  DEEDS  CONVEYING  LAND. 

in  consideration  of  the  aforesaid  indebtedness  to  the  and 

of  one  dcillar  to  in  hand  paid  by  the  part      of  the  second  part, 

the  receipt  whereof  is  hereby  acknowledged,  and  for  the  purpose  of  securing 
the  payment  of  said  promissory  note,  and  of  any  sum  or  sums  of  money,  with 
interest  thereon,  that  may  be  paid  or  advanced  by,  or  may  otherwise  be  due 
to  the  part  of  the  second  or  third  part,  under  the  provisions  of  this  in- 
strument, do  by  these  presents  grant,  bargain,  sell,  convey,  and  confirm 
unto  the  part  of  the  second  part  in  joint  tenancy,  and  to  the  survivor  of 
them,  their  successors  and  assigns,  the  piece  or  parcel  of  land  situate  in  the 
,  county  of  ,  State  of  , 

described  as  follows  :  {Jiei'e  describe  carcfidly  the  land  or  premises 

conveyed  substantially  as  directed  in  Eorm  107.) 

And  also,  all  the  estate  and  interest,  homestead,  or  other  claim  or  demand, 
as  well  in  law  as  in  equity,  which  the  said  part      of  the  first  part  now  ha 
or  may  hereafter  acquire  of,  in,  and   to  said   premises,  with  the  appurte- 
nances ; 

To  have  and  to  hold  the  same  to  the  parties  of  the  second  part,  as  joint 
tenants  (and  not  as  tenants  in  common),  with  right  of  survivorship  as  such, 
and  to  their  successors  and  assigns  (said  parties  of  the  second  part  and  their 
■successors  being  hereby  expressly  authorized  to  convey,  subject  to  the 
*rusts  herein  expressed,  the  lands  above  described),  upon  the  trusts  and  con- 
fidences hereinafter  expressed,  to  wit : 

First,  During  the  continuance  of  these  trusts,  the  party  of  the  third  part 
and  the  parties  of  the  second  part,  their  successors  and  assigns,  are  hereby 
authorized  to  pay,  without  previous  notice,  all  taxes,  assessments,  and  liens 
now  subsisting,  or  which  may  hereafter  be  imposed  by  national,  state,  county, 
city,  or  other  authority,  upon  said  premises,  and  on  the  money  so  borrowed 
as  aforesaid,  to  whomsoever  assessed,  and  all  or  any  incumbrances  now  sub- 
sisting, or  that  may  hereafter  subsist  thereon,  which  may  in  their  judgment 
affect  said  premises  or  these  trusts,  at  such  tirne  as  in  their  judgment  they 
may  deem  best ;  or  in  their  discretion,  for  the  benefit  and  at  the  expense  of 
said  part  of  the  first  part,  to  contest  the  payment  of  any  such  taxes,  assess- 
ments, liens,  or  incumbrances,  or  defend  any  suit  or  proceeding  instituted 
for  the  enforcement  thereof;  and  in  like  manner  to  prosecute  or  defend  any 
suit  or  proceeding  that  they  may  consider  proper  to  protect  the  title  to  said 
premises,  and  these  trusts  shall  be  and  continue  as  security  to  the  party  of 
the  third  part,  and  their  assigns,  for  the  repayment,  in  gold  coin  of  the 
United  States,  of  the  moneys  so  borrowed  by  the  and  the 

interest  thereon,  and  of  all  amounts  so  paid  out,  and  costs 

and  expenses  incurred  as  aforesaid,  whether  paid  by  the  part     of  the  second 
or  third  part,  with  interest  on  such  payments  at  the  rate  of  per 

cent,  per  month  until  final  repayment. 

Secondly,   In  case  the  said  shall  well  and  truly  pay,  or 

cause  to  be  paid  at  maturity,  in  gold  coin  as  aforesaid,  all  sums  of  money  so 
borrowed  as  aforesaid,  and  the  interest  thereon,  and  shall 


FORMS  OF  DEEDS.  ^^I 

upon  demand  repay  or  deposit  all  other  moneys  secured,  or  intended  to  be 
secured  hereby,  and  also  the  reasonable  expenses  of  this  trust,  then  the  par- 
ties of  the  second  part,  the  survivor  of  them,  their  successors  and  assigns, 
shall  reconvey  all  the  estate  in  the  premises  aforesaid  to  them  by  this  instru- 
ment granted  unto  heirs  and  assigns,  at  request 
and  cost. 

Thirdly,  If  default  shall  be  made  in  the  payment  of  any  of  said  sums 
of  principal  or  interest,  when  due,  in  the  manner  stipulated  in  said  promissory 
note,  or  in  the  reimbursement  of  any  amounts  herein  provided  to  be  paid,  or 
of  any  interest  thereon,  then  the  said  parties  of  the  second  part,  or  the  sur- 
vivor of  them,  their  successors  or  assigns,  on  application  of  the  party  of  the 
third  part,  or  their  assigns,  shall  sell  the  above  granted  premises,  or  such 
part  thereof  as  in  their  discretion  they  shall  find  it  necessary  to  sell  in  order 
to  accomplish  the  objects  of  these  trusts,  in  the  manner  following,  namely : 

They  shall  first  publish  the  time  and  place  of  such  sale,  with  a  descrip- 
tion of  the  property  to  be  sold,  at  least  a  week  for 
weeks,  in  some  newspaper  published  in  the  county  of 
and  may  from  time  to  time  postpone  such  sale  by 
publication ;  and,  on  the  day  of  sale  so  advertised,  or  to  which  such  sale 
may  be  postponed,  they  may  sell  the  property  so  advertised,  or  any  portion 
thereof,  at  public  auction,  in  any  county  where  any  part  of  said  property  may 
be  situated,  to  the  highest  cash  bidder ;  and  the  holder  or  holders  of  said 
promissory  note,  their  agent  or  assigns,  may  bid  and 
purchase  at  such  sale. 

And  the  part      of  the  second  part  or  assigns,  shall 

establish  as  one  of  the  conditions  of  such  sale,  that  all  bids  and  payments 
for  said  property  shall  be  made  in  like  gold  coin  as  aforesaid,  and  upon  such 
sale  shall  make,  execute,  and  after  due  payment  made,  shall 

deliver  to  the  purchaser  or  purchasers,  his  or  their  heirs  and  assigns,  a  deed 
or  deeds  of  grant,  bargain,  and  sale,  of  the  above  granted  premises,  and  out 
of  the  proceeds  thereof  shall  pay: 

First,  The  expenses  thereof,  together  with  the  reasonable  expenses  of 
this  trust,  including  counsel  fees  of    »  dollars,  in  gold  coin, 

which  shall  become  due  upon  any  default  made  by  the 
in  any  of  the  payments  aforesaid. 

Second,  All  sums  which  may  have  been  paid  by  the  said 

or  the  part      of  the  second  part,  successors  or  assigns, 

or  the  holders  of  the  note  aforesaid,  and  not  reimbursed,  and  which  may 
then  be  due,  whether  paid  on  account  of  incumbrances  or  insurance,  as  afore- 
said, or  in  the  performance  of  any  of  the  trusts  herein  created,  and  with 
whatever  interest  may  have  accrued  thereon  ;  next  the  amount  due  and 
unpaid  on  said  promissory  note,  with  whatever  interest  may  have  accrued 
thereon  ;  and  lastly,  the  balance  or  surplus  of  such  proceeds,  if  anv,  to  said 
heirs  or  assigns. 

And    in    the   event   of  a   sale    of   said   premises,  or   any  part  thereof, 


492 


DEEDS  CONVEYING  LAND. 


and  the  execution  of  a  deed  or  deeds  therefor,  under  these  trusts,  then  the 
recitals  therein  of  default  and  publication  shall  be  conclusive  proof  of  such 
default  and  of  the  due  publication  of  such  notice  ;  and  any  such  deed  or 
deeds,  with  such  recitals  therein,  shall  be  effectual  and  conclusive  against 
the  said  part      of  the  first  part,  heirs  or  assigns,  and  all  other  persons ; 

and  the  receipt  for  the  purchase-money  contained  in  any  deeds  executed 
to  the  purchaser^  as  aforesaid,  shall  be  a  sufficient  discharge  to  such  pur- 
chaser from  all  obligation  to  see  to  the  proper  application  of  the  purchase- 
money,  according  to  the  trusts  aforesaid. 

In  Witness  "Whereof,  the  said  part      of  the  first  part  ha      hereunto  set 
hand      and  seal      the  day  and  year  first  above  written. 

{Sii^7iatures.)     {Sedls.) 

Duly  Signed,  Sealed,  and  Delivered  in  tlie  presence  of 

(136.) 

Trust  Deed  to  Secure  Payment  of  a  Promissory  Note,  in 
use  in  Colorado. 

This  Indenture,  Made  this  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 

between  {nanie  and  occupation  of  grantor  or  grantors),  oi  the  county 

of  (rt'j'/c/ijwt-^). and  State  of  Colorado,  part      of  the  first  part ;  and 

{najne  and  occupation  of  grantee  or  grantees)  of  the  county  of 
{residence)  and  State  of  Colorado,  party  of  the  second  part,  witnesseth, 

That  Whereas,  The  said  part      of  the  second  part,  ha      executed 

promissory  note       bearing  even  date  herewith,  for  the 

sum  of  dollars,  payable  to  the  order  of 

with  interest  thereon,  from  until 

paid,  at  the  rate  of  per  cent.  jDcr  payable  or  to 

be  counted  as  principal. 

And  whereas,  the  said  part      of  the  first  part  desirous  of  secur- 

ing not  only  the  prompt  payment  of  said  promissory  note  and  the  interest 
that  may  accrue  thereon,  in  whose  hands  soever  the  same  may  be. 

Now  therefore,  the  said  part  of  the  first,  in  consideration  of  the  prem^ 
ises  and  for  the  purpose  aforesaid,  and  in  the  further  consideration  of  one 
dollar  to  in  hand  paid  by  the  said  party  of  the  second  part, 

the  receipt  whereof  is  hereby  confessed,  ha  and  hereby  do  grant,  bargain, 
sell,  and  convey  unto  the  said  party  of  the  second  part,  in  trust,  forever,  all 
the  lands  and  premises  situate  in  the  county  of  and  State 

of  Colorado,  known  and  described  as  follows,  to  wit :  {here  describe 

carefully  the  land  or  premises  granted,  as  directed  in  Form  107.) 

To  Have  and  to  Hold  the  same,  together  with  all  and  singular  the 
tenements,  hereditaments,  privileges,  and  appurtenances  thereunto  belong- 
ing, to  the  said  party  of  the  second  part,  or  upon  his  failure  to  act,  to  his 
successor,  in  trust  forever:  In  trust,  nevertheless,  that  in  case  of  default  in 


FORMS  OF  DEEDS.  493 

the  payment  of  the  said  promissory  note  or  any  part  thereof, 

or  the  interest  thereon,  according  to  the  tenor  and  effect  of  said  note  or  in 
case  of  the  breach  of  any  ol  the  covenants  or  agreements  herein  mentioned, 
then  on  the  apphcation  of  the  legal  holder  of  said  promissory  note  or  either 
of  them,  to  sell  and  dispose  ot  the  said  premises,  and  all  the  right,  title, 
benefit,  and  equity  of  redemption  of  the  said  part      of  the  first  part 

heirs  and  assigns  therein,  at  public  auction,  at  the 
in  the  county  of  ^.nd  State  of  Colorado,  or  on  said  premises, 

or  on  any  part  thereof,  as  may  be  specified  in  the  notice  of  such  sale,  for  the 
highest  and  best  price  the  same  will  bring  in  cash,  weeks' 

notice  having  been  previously  given  of  the  time  and  place  of  such  sale,  by 
advertisement  in  any  newspaper  at  that  time  published  in  said  last-named 
county,  and  to  make,  execute,  and  deliver  to  the  purchaser  or  purchasers  at 
such  sale,  good  and  sufficient  deed  or  deeds  of  conveyance  for  the  premises 
sold  ;  and  out  of  the  proceeds  or  avails  of  such  sale  and  the  purchase-money 
paid  thereon,  after  first  paying  all  costs  of  advertising,  sale,  and  conveyance, 
including  the  reasonable  fees  and  commissions  of  said  party  of  the  second 
part,  and  all  other  expenses  of  this  trust,  including  all  moneys  advanced  for 
insurance,  taxes,  and  other  liens  or  assessments,  with  interest  thereon,  at 

per  cent,  per  then  to  pay  the  principal  of  said  note 

whether  due  and  payable  by  the  terms  thereof  or  not,  and  interest  due  on 
said  note  up  to  the  time  of  such  sale,  rendering  the  overplus  (if  any)  unto 
the  said  part       of  the  first  part  legal  representatives  or  assigns, 

on  reasonable  request  (and  it  shall  not  be  obligatory  upon  the  purchaser  or 
purchasers  at  any  such  sale  to  see  to  the  application  of  the  purchase  mone)'); 
which  sale  or  sales  so  made  shall  be  a  perpetual  bar,  both  in  law  and  equit}-, 
agaiiist  the  said  part     of  the  first  part,  heirs  and  assigns,  and  all  other 

persons  claiming  the  premises  aforesaid,  or  any  part  thereof,  by,  from, 
through,  or  under  said  part      of  the  first  part,  or  any  of  them. 

And  in  case  of  any  suit  or  proceeding  at  law  or  in  equity  wherein  said 
party  of  the  second  part  shall  be  made  a  party  by  reason  of  his  trusteeship 
under  this  deed,  he  shall  be  allowed  and  paid  his  reasonable  costs,  charges, 
attorney's  and  solicitor's  fees,  in  such  suit  or  proceeding  by  said  part  of 
the  first  part,  and  the  same  shall  be  a  further  charge  and  lien  upon  said 
premises  under  this  deed,  to  be  paid  out  of  the  proceeds  of  sale  thereof, 
as  aforesaid,  with    interest   thereon    at   the   rate   of  per   cent, 

per  if   not   otherwise   paid   by   said   part       of   the    first   part. 

And  the  said  party  of  the  second  part,  or  his  successor  in  trust,  with  or 
without  re-advertising,  is  hereby  authorized  and  empowered  to  postpone  or 
adjourn  said  sale  from  time  to  time,  or  any  length  of  time,  at  his  discretion ; 
and  also  to  sell  the  said  premises  ett  masse  or  in  separate  parcels,  as  he 
may  prefer  or  think  best.     And  the  said  for 

and  heirs,  executors,  and  administrators  covenant      and  agree 

to  and  with  the  said  party  of  the  second  part,  and  his  successor  in  trust 


494  DEEDS  CONVEYING  LAND. 

hereinafter  named,  that  at  the  time  of  the  ensealing  and  dehvery  of  these 
presents  well    seized   of   said   premises    in   fee-simple, 

and  ha  good  riglit,  full  power,  and  lawful  authority  to  grant,  bargain,  and 
sell  the  same  in  manner  and  form  as  aforesaid  ;  that  the  same  are  free  and 
clear  of  all  liens  and  incumbrances  whatsoever. 

And  the  said  part  of  the  first  part  will  in  due  season  pay  all  taxes  and 
assessments  on  said  premises ;  and  at  the  request  of  the  party  of  the  second 
part  will  keep  all  buildings  that  may  at  any  time  be  on  said  premises,  during 
the  continuance  of  said  indebtedness,  insured  in  such  company  or  companies 
as  the  holder  or  holders  of  said  note  may  from  time  to  time  direct;  for 
such  sum  or  sums  as  such  company  or  companies  will  insure  for,  not  to 
exceed  the  amount  of  said  indebtedness,  except  at  the  option  of  said  part 
of  the  first  part,  and  will  assign,  with  proper  consent  of  the  insurers,  the 
policy  or  policies  of  insurance  to  said  party  of  the  second  part,  as  further 
security  for  the  indebtedness  aforesaid.  And  in  case  of  the  refusal  or  neglect 
of  said  part  of  the  first  part,  or  either  of  them,  thus  to  insure,  or  assign 
the  policies  of  insurance,  or  to  pay  such  taxes  or  assessments,  said  party  of 
the  second  part,  or  his  successor  in  trust,  or  the  holder  of  said  note  or 
e/ther  of  them,  may  procure  such  insurance,  or  pay  such  taxes  or  assess- 
ments, and  all  moneys  thus  paid,  with  interest  thereon  at 
per  cent,  per  shall  become  so  much  additional  indebtedness, 

secured  by  this  deed  of  trust,  and  to  be  paid  out  of  the  proceeds  of  sale  of 
the  lands  and  premises  aforesaid,  if  not  otherwise  paid  by  said  part  of  the 
first  part,  and  the  said  premises  in  the  quiet  and  peaceable  possession  of  the 
party  of  the  second  part  or  successor  in  trust  against  all 

and  every  other  person  lawfully  claiming  or  to  claim  the  whole,  or  any  part 
thereof,  the  said  part  of  the  first  part  shall  and  will  warrant  and  forev^er 
defend. 

And  it  is  stipulated  and  agreed,  that  in  case  of  default  in  any  of  said  pay- 
ments of  principal  or  interest,  according  to  the  tenor  and  effect  of  said  prom- 
issory note  aforesaid,  or  either  of  them,  or  any  part  thereof,  or  of  a  breach 
of  any  of  the  covenants  or  agreements  herein  by  the  part  of  the  first  part 
executors,  administrators,  or  assigns,  then  and  in  that  case, 
the  whole  of  said  principal  sum  hereby  secured,  and  the  interest  thereon  to 
the  time  of  sale,  may  at  once,  at  the  option  of  the  legal  holder  thereof,  become 
due  and  payable,  and  the  said  premises  be  sold  in  the  manner  and  with  the 
same  effett  as  if  the  said  indebtedness  had  matured. 

And  it  is  further  agreed  and  especially  understood  that  in  case  of  the 
death,  resignation,   removal,  or  absence  from  the  of 

or  refusal,  or  failure,  or  inability  of  said  party  of  the  second 
part  to  act,  then  shall  be  and  hereby  is  appointed  and 

made  successor  in  trust  of  the  said  party  of  the  second  part,  and  in  such 
event  the  said  lands  and  premises  shall  become  vested  in  such  new  trustee 
and  all  the  power  and  authority  by  this  indenture  granted  to  the  said  party 
of  the  second  part  shall  accrue  to  and  be  exercised  by  the  said 


FORMS  OF  DEEDS. 


495 


the  same  to  all  intents  and  purposes  as  if  he  had  been  made  the  party  of 
the  second  part  herein. 

In  Witness  Whereof,  The  said  part     of  the  first  part  ha     hereunto  set 
hand      and  seal      the  day  and  year  first  above  written. 

{Signatures.)     {Seals.) 
( Witness ) 

State  of  Colorado,  ^ 

-  ss. 
County  of  ) 

I,  in  and  for  said  county,  in  the  State  aforesaid,  do 

hereby  certify  that  personally  known  to  me  as  the 

person      whose  name  subscribed  to  the  annexed  deed,  appeared 

before  me  this  day  in  person  and  acknowledged  that  signed,  sealed, 

and  delivered  the  said  instrument  of  writing  as  free  and  voluntary 

act,  for  the  uses  and  purposes  therein  set  forth. 

Given  under  my  hand  and  seal,  this 

day  of  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and 

{Signattcre.) 

(137.)    . 

Deed  of  Grant  with  "Warranty  against  Claimants  through 
the  Grantor,  in  use  in  Delaware. 

This  Indenture,  made  the  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 
between  {name  a7id  occiipatioji  of  grantor),  and 

his  wife,  of  the  county  of  and  State  of  , 

of  the  first  part,  and  {name  and  occupation  of  the  grantee),  of  the  same 

county  and  State,  of  the  second  part,  Witnesseth  :  that  the  said  parties  of 
the  first  part,  for  and  in  consideration  of  the  sum  of 

dollars,  lawful  money  of  the  United  States  of  America,  to  them  well  and 
truly  paid,  by  the  said  party  of  the  second  part,  at  and  before  the  sealing 
and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
hath  granted,  bargained,  sold,  aliened,  enfeoffed,  released,  conve3ed,  and 
confirmed,  and  by  these  presents  doth  grant,  bargain,  sell,  aliene,  enfeoff, 
release,  convey,  and  confirm  unto  the  said  and  to  his 

heirs  and  assigns,  all  that  lot,  piece,  or  parcel  of  land,  {here  describe 
the  premises  granted  as  directed  in  Form  107),  Together  with  all  and 
singular  the  buildings,  improvements,  ways,  woods,  waters,  water-courses, 
ric^hts,  liberties,  privileges,  hereditaments,  and  appurtenances  whatsoever 
thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversions  and 
remainders,  rents,  issues,  and  profits  thereof  ;  and  all  the  estate,  right,  title, 
interest,  property,  claim,  and  demand  whatsoever  of  them,  the  said  parties 
of  the  first  part,  in  law,  equity,  or  otherwise,  howsoever,  of,  in,  and  to  the 
same,  and  every  part  and  parcel  thereof. 


496  DEEDS  CONVEYING  LAND. 

To  Have  and  to  Hold  the  said  land,  messuage,  hereditaments,  and  prem- 
ises  hereby  granted  or  mentioned,  or  intended  so  to  be,  with  the  appurte- 
nances, unto  tlie  said  ,  his  heirs  and  assigns,  to  and 
for  the  only  proper  use  and  behoof  of  the  said  ,  his  heirs 
and  assigns,  forever,  and  the  said  {here  insert  the  natnes  of  the 
grantor  and  Ills  wife),  for  themselves,  their  heirs,  executors,  and  adminis- 
trators, do  by  these  presents  covenant,  grant,  and  agree  to  and  with  the  said 
,  his  heirs  and  assigns,  that  they,  the  said  , 
and  their  heirs,  all  and  singular,  the  hereditaments  and  premises  hereinbe- 
fore described  and  granted  or  mentioned,  or  intended  so  to  be,  with  the 
appurtenances,  unto  the  said  ,  his  heirs  and  assigns,  against 
them,  the  said  ,  their  heirs,  and  against  all  and  every  other 
person  or  persons  whomsoever,  lawfully  claiming  or  to  claim  the  same  or 
any  part  thereof,  through,  by,  from,  or  under  them,  shall  and  will  by  these 
presents  warrant  and  forever  defend. 

In  "Witness  V/hereof,  The  said  have  hereunto  set 

their  hands  and  seals.     Dated  the  day  and  year  first  above  written. 

(Signatures^        {Seals.) 

Sealed  and  Delivei-ed  in  the  Presence  of 

%  Received,  the  day  of  the  d,ite  of  this  indenture,  of  the 

above  named  >  full  satisfaction  for  the  consideration 

money. 

{Signature.) 
{Wittiess  at  signing)  \  mentioned. 

(138.) 
Brief  Quitclaim  Deed  in  use  in  Indiana. 

This  Indenture  Witnesseth,  That  I  {name  and  occupation  of  the 

grantor)  of  county,  in  the  State  of 

release  and  quitclaim  to  {name  and  occupation  of  the  grantee),  of 

county,  in  the  State  of  for  the 

sum  of  dollars,  the  following  real  estate  in 

county,  in  the  State  of  Indiana,  to  wit :      {here  describe  the  land  or  premises 
granted,  carefully,  as  directed  in  Form  107). 

In  Witness  Whereof,  The  said  ha        hereunto 

set  hand    and  seal    ,  this  day  of  18       . 

{Signatures)    {Seals.) 
Executed  in  the  Presence  of 

State  of  Indiana,        > 

>  ss. 
County.  ) 
Before  me,  ,  a  in  and  for  said  county, 

this  day  of  18      ,  acknowledged  the  execution 

of  the  annexed  deed. 


Witness  my  hand  and  seal. 


{Signature)    {Seal.) 


FORMS  OF  DEEDS.  40,7 

(139.) 

Brief  Quitclaim  Deed  in  use  in  Nebraska. 

Know  all  Men  by  these  Presents,  That  I  {or  we)  {name,  residence, 
and  occupation  ofgrafitor  or  grantors),  in  consideration  of 
dollars,  in  hand  paid,  do  hereby  grant,  sell,  remise,  release,  and  forever 
quitclaim,  unto  {natne,  residence,  and  occupation  of  the  grantee  o'r  grant- 
ees), the  following  described  real  estate,  situate  in  the  county  of 
and  State  of  {here  describe  the  land  or  premises  granted,  siibstantially  as 
directed  in  Form  107). 

Together  with  all  the  tenements,  hereditaments,  and  appurtenances  to 
the  same  belonging,  and  all  the  estate,  right,  title,  interest,  dower,  claim,  or 
demand  whatsoever,  of  the  said  of,  in,  and  to  the  same, 

or  any  part  thereof. 

To  Have  and  to  Hold  tlie  above-described  premises,  with  the  appurte- 
nances, unto  the  said  and  to  heirs  and  assigns  for- 
ever. 

Signed  this  day  of  A.  D.  eighteen 

hundred  and 

{Signatures.)     {Seals.) 

In  Presence  of 

The  State  of  Nebraska,         ) 

^  ss. 
County.  ) 

On  this  day  of  A.D.  eighteen  hundred  and 

,  before  me,  a  Notary  Public,  in  nnd  for  said  countv.  person- 
ally came  the  above-named  who  personally  known 
to  me  to  be  the  identical  person        who  e  name           affixed  to  the  above 
deed  as  grantor'    ,  and                    acknowledged  the  instrument  to  be 
voluntary  act  and  deed. 

Witness  my  hand  and  notarial  seal  the  date  aforesaid. 

{Signature?) 

A-otary  Public. 
(140.) 
Quitclaim  Deed  in  use  in  Delaware. 
Know  all  Men  by  these  Presents,  That  I  {name,  resi- 

dence, and  occupation  of  grantor),  for  and  in  consideration  of  the  sum  of 

to  me  in  hand  paid,  or  secured  to  be  paid  by 
{name,  residence,  and  occupation  of  grantee),  the  receipt  whereof  is  hereby 
acknowledged,  have  remised,  released,  and  quitclaimed,  and  by  these  pres- 
ents do  remise,  release,  and  quitclaim  unto  the  said 
and  to  his  heirs  and  assigns,  forever,  all  that  lot,  piece,  or  parcel  of  land, 

{here  describe  the  land  or  premises  quitclaimed,  as  directed  in   Form 
107). 

Together  with  all  and  singular   the  hereditaments  and  appurtenances 
32 


498  DELDS  CONVEYING  LAND. 

thereto  belonging  or  in  anywise  appertaining,  and  the  reversions,  remainders, 
rents,  issues,  and  profits  thereof  ;  and  all  the  estate,  ri;j;ht,  title,  interest, 
claim,  or  demand  whatsoever  of  me  the  said  either  in 

law  or  equity,  of,  in,  and  to  the  above  or  aforesaid  bargained  premises. 

To  Have  and  to  Hold  the  same  to  the  said  and  to 

his  heirs  and  assigns  forever. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  the 

day  of  in  the  year  of  our  Lord  ei^^hteen  hundred 

and 

{Signature.)     {Seal.) 

Signed,  Sealed,  and  Delivered  in  the  presence  of 

(141.) 
Quitclaim  Deed  in  use  in  Alabama. 

Be  it  Known,  That  {name  attd  occupation  of  the  grantor),  of  the 

county  of  State  of  for  and  in  consideration 

of  the  sum  of  dollars,  lawful  money  of  the  United  States 

of  America,  to  in  hand  paid,  by  {naijie,  residence,  and  occupation  of  the 

grantee^  at  or  before  the  sealing  and  dehvery  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  ha  remised,  released,  and  forever  quit- 
claimed, and  by  these  presents  do  remise,  release,  and  forever  quitclaim 
unto  the  Slid  {the  grantee),  \x\  full  and  actual  possession  now 
being  and  to  heirs  and  assigns  forever,  all  and  singular  the  estate, 
right,  title,  interest,  use,  trust,  property,  claim,  and  demand  whatsoever, 
at  law  as  well  as  in  equity,  in  possession  as  well  as  in  expectancy  of,  in,  to, 
or  out  of  all  and  singular  the  following  described  premises.  That  is  to  say, 
{here  describe  with  sufficient  care  the  laitd  or  premises  granted,  as  de- 
scribed in  Form  loy). 

To  Have  and  to  Hold  the  said  released  premises  unto  the  said  (the 
grantee)     heirs  and  assigns,  to  own  proper  use,  benefit,  and  behoof  for 

ever,  so  that  neither  the  said  {the  grantor),  heirs  or  assigns,  nor  any  other 
person  or  persons  in  trust  for  or  in  name  or  names,  or 

in  the  name,  right,  or  stead  of  any  of  them,  shall  or  will,  can  or  may,  by 
any  ways  or  means  whatever,  hereafter  have,  claim,  challenge,  or  demand 
any  right,  tide,  interest,  or  estate,  of,  in,  to,  or  out  of  the  said  premises  above 
described  and  hereby  released,  but  that  the  said 

heirs  and  assigns,  each  and  every  of  them,  from  all  estate,  right,  title,  interest, 
property,  claim,  and  demand  whatsoever  of,  in,  to,  or  out  of  the  said  premi- 
ses, or  any  part  thereof,  are,  is,  and  shall  be,  by  these  presents,  forever 
excluded  and  debarred. 

In  Witness  Whereof,  The  said  ha      hereunto  set 

hand    and  seal    this  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

(Signature.)    (Seal.) 
Sealed,  Signed,  and  Delivered  in  the  Presence  of 


FORMS  OF  DEEDS.  499 

State  of  Alabama,     ) 

V  ss. 
County.  ) 

I,  hereby  certify  that  whose  name 

signed  to  the  foregoing  conveyance,  and  who  known  to  me,  acknowl- 

edged before  me,  on  this  day.  that  being  informed  of  the  contents  of  the  con- 
veyance, he  executed  the  same  voluntarily  0:1  the  day  the  same  bears 
date 

Given  under  my  hand  and  seal,  this  day  of  A.D.  18. 

{Signature.) 
(142.) 
"Warranty  Deed  in  use  in  New  York. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between 

{name,  residence,  and  occupation  of  the  grantor)  of  the  first  part,  and 
{name,  residence,  and  occupation  of  the  grantee)  of  the  second  part,  witness- 
eth,  that  the  said  part     of  the  first  part,  for  and  in  consideration  of  the  sum 
of  lawful  money  of  the  United  States,  to  in 

hand  paid  by  the  said  part  of  the  second  part,  at  or  before  the  ensealing 
and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
and  the  said  part       of  the  second  part,  heirs,  executors,  and 

administrators,  forever  released  and  discharged  from  the  same,  by  these 
presents,  ha  granted,  bargained,  sold,  aliened,  remised,  released,  conveyed, 
and  confirmed,  and  by  these    presents  do  grant,  bargain,   sell,  aliene, 

remise,  release,  convey,  and  confirm,  unto  the  said  part  of  the  second 
part,  and  to  heirs  and  assigns  forever,  all  {here  describe  the  premises 

granted  as  directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging  or  in  anywise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents/ issues,  and  profits  thereof. 
And  also  all  the  estate,  right,  title,  interest,  property,  possession, 

claim,  and  demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  part 
of  the  first  part,  of,  in,  and  to  the  same,  and  every  part  and  parcel  thereof, 
with  the  appurtenances. 

To  Have  and  to  Hold  the    above   granted,   bargained,  and   described 
premises,  with  the  appurtenances,  unto  the  said  part         of  the  second   part 
heirs  and  assigns,  to  their  own  proper  use,  benefit, 

and  behoof  forever. 

And  the  said  for  heirs,  executors,  and 

administrators,   do  covenant,   grant,   and   agree   to   and  with   the 

said  part       of  the  second  part,  heirs   and  assigns,  that  the  said 

at  the  lime  of   the  sealing  and  delivery  of    these 
presents,  lawfully  seized    in  of    a   good,  absolute,  and 

indefeasible  estate  of  inheritance  in  fee-simple  of  and  in  all  and  singular 
the  above  granted  and  described  premises,  with  the  appurtenances 

and  ha    good  right,  full  power,  and  lawful  authority  to 


500 


DEEDS  CONVEYING  LAND. 


grant,  bargain,  sell,  and  convey  the  same  in  manner  aforesaid:  And  that  the 
said  part       of  the  second  part,  heirs  and  assigns,  sh.ill  and  may 

at  all  times  hereafter,  peaceably  and  quietly  have,  hold,  use,  occupy,  possess, 
and  enjoy  the  above  granted  premises,  and  every  part  and  parcel  thereof, 
with  the  appurtenances,  without  any  let,  suit,  trouble,  molestation,  eviction, 
or  disturbance  of  the  said  part      of  the  first  part,  heirs  or  assigns, 

or  of  any  other  person  or  persons  lawfully  claiming  or  to  claim  the  same  : 
And  that  the  same  now  are  free,  clear,  discharged,  and  unencumbered,  of 
and  from  all  former  and  other  grants,  titles,  charges,  estates,  judgment?, 
taxes,  assessments,  and  encumbrances  of  what  nature  or  kind  soever. 

And  also,  that  the  said  part     of  the  first  part,  and  heirs,  and 

all  and  every  person  or  persons  whomsoever  lawfully  or  equitably  deriving 
any  estate,  right,  title,  or  interest,  of,  in,  or  to  the  hereinbefore  granted 
premises,  by,  from,  under,  or  in  trust  for  them,  shall  and  will, 

at  any  time  or  times  hereafter,  upon  the  reasonable  request,  and  at  the 
proper  costs  and  charges  in  the  law,  of  the  said  part  of  the  second  part, 
heirs  and  assigns,  make,  do,  and  execute,  or  cause  to  be  made, 
done,  and  executed,  all  and  every  such  further  and  other  lawful  and  reason, 
able  acts,  conveyances,  and  assurances  in  the  law,  for  the  better  and  more 
effectually  vesting  and  confirming  the  premises  hereby  granted  or  so 
intended  to  be,  in  and  to  the  said  part      of  the  second  part,  heirs 

and  assigns  forever,  as  by  the  said  part      of  the  second  part,  heirs  or 

assigns,  or  their  counsel  learned  in  the  law,  shall  be  reasonably 

advised  or  required:  And  the  said  heirs,  the  above 

described  and  hereby  granted  and  released  premises,  and  every  part  and 
parcel  thereof,  with  the  appurtenances,  unto  the  said  part  of  the  second 
part,  heirs  and  assigns,  against  the  said  part       of  the  first  part, 

and  heirs,  and  against  all  and  every  person  and  persons  whomscK- 

ever,  lawfully  claiming  or  to  claim  the  same,  shall  and  will  warrant  and  by 
these  presents  forever  defend. 

In  Witness  Whereof,  the  said  part      of  the  first  part  hereunto 

set  hand     and  seal     the  day  and  year  first  above  written. 

(And  {name  of  the  wife  of  grantor)  signs  and  seals  this  deed  in  token  of 
her  relinquishment  and  release  to  the  party  of  the  second  part  of  all  her 
right  of  dower  in  the  premis6s  hereby  granted.) 

{Signature  of  grantor^  {Seal.) 

{Signature  of  grantor'' s  wife.)        {Seal.) 

Sealed  and  Delivered  in  the  Presence  of 


[■ss. 


State  of 

OF 

County  of 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came 

to  be  the  individual       described  in,  and  who  executed  the  foregoing  instru- 
ment, and  acknowledged  that     he     executed  the  same. 

{Signature.) 


FORMS  OF  DEEDS.  501 

(143) 
Bond  for  a  Deed. 

Know  all  Men  by  these  Presents,  That  I,  {na7nc  of 

the  obligor)  of  the  County  of  and  State  of  am  held  and 

firmly  bound  to  {name  of  the  obligee)  of  the  County  of  and 

State  of  in  the  sum  of  dollars,  to  be  paid  to 

said  (iiaine  of  obligee)  or  his  executors,  administrators,  or  assigns,  to 

the  payment  whereof  I  bind  myself,  my  heirs,  executors,  and  administrators, 
firmly  by  these  presents.     Sealed  with  my  seal  and  dated  the  day  of 

A.D.  iS 

The  Condition  of  tliis  obligation  is  that  if  I  the  said  {name of 

the  obligor)  upon  payment  of  dollars,  and  interest  thereon,  as 

agreed  and  promised  by  said  •  {name  of  the  obligee)  agreeably  to  his 

promissory  note,  dated  18     ,  and  made  payable  as  follows,  to 

Vi\\.{lure  set  forth  the  note.  If  there  be  no  note  frofti  the  obligee,  omit  this 
part),  shall  convey  to  said  {na?ne  of  the  obligee)  or  his  heirs,  executors, 

or  assigns,  forever,  the  following  described  real  estate,  situate,  lying,  and 
being  in  the  County  of  and  State  of  to  wit  {here 

describe  carefully  the  land  or  premises  granted,  as  directed  ifi  Fortn  107), 
deed  or  deeds  in  common  form,  duly  executed  and  acknowledged,  and  in  the 
meantime  shall  permit  said  {name  of  the  obligee)  to  occupy  and  improve 

Slid  premises  for  his  own  use,  then  this  obligation  shall  be  void,  otherwise 
it  shall  remain  in  full  force. 

{Signature.)     {Seal.) 

Signed,  Sealed,  atid  Delivered  in  the  Presence  of 

State  of  ■> 

>•  ss. 
County  of  ) 

Be  it  Remembered,   That  on  this  day  of 

A..D.  18  ,  before  the  undersigned,  a  Notary  Public  {or  other  magistrate), 
within  and  for  the  County  of  aforesaid,  personally  came 

{natne  of  the  obligor)  who  is  personally  known  to  me  to  be  the  same  person 
whose  name  is  subscribed  to  the  foregoing  instrument  of  writing,  as  the 
obligor  therein,  and  acknowledged  the  same  to  be  his  free  act  and  deed,  for 
the  purposes  therein  mentioned. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
official  seal  at  my  office  in  the  day  and  year  first  above 

written. 

{Signattire)        {Seal.) 

(144.) 
Contract  for  Sale  of  Land,  with  Penal  Obligation. 

Articles  of  Agreement,  Made  and  concluded  this  day 

of  A.D,  18     ,  between  of  the  County  of 


502 


DEEDS  CONVEYING  LAND. 


and  State  of  of  the  one  part,  and  of  the 

County  of  and  State  of  of  the  other  part, 

as  follows  : 

The  said  {name  of  the  pa>-ty  of  the  first  part)  for  the  considera- 

tion hereinafter  mentioned,  does  for  himself  and  for  his  heirs,  covenant  and 
agree  with  the  said  {name  of  the  party  of  the  second  part)  and  his 

heirs  and  assigns,  by  these  presents,  that  he,  the  said  party  of  the  first  part, 
shall  and  will,  on  or  before  the  day  of  A.D.  i8        , 

at  the  proper  costs  and  charges  of  the  said  party  of  the  first  part  {or  of 
the  second  part,  if  that  is  agreed),  his  heirs  and  assigns,  by  good  and  lawful 
deed  or  deeds,  well  and  sufificienily  grant,  convey,  and  assure  unto  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  in  fee-simple,  clear  of  all 
incumbrances,  all  that  certain  tract  c  r  parcel  of  land  lying,  being,  and  situate 
in  the  County  of  State  of  *  as  follows,  to  w\i{here 

describe  carefully  the  latid  or  premises  granted,  as  directed  in  Form  107). 

In  Consideration  "Whereof,  The  sr.ii  {here  the  fiame  of  the  party 

of  the  second  part),  for  himself  and  his  heirs,  does  covenant  and  agree  with 
the  said  party  of  the  first  part,  and  witli  his  heirs  and  assigns,  by  these 
presents,  that  he,  the  said  party  of  the  second  part,  and  his  heirs,  or  some  of 
them,  shall  and  will  on  the  execution  and  delivery  of  the  said  deed  or  deeds 
as  aforesaid,  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  said  party  ot 
the  first  part,  or  his  heirs  and  assigns,  the  sum  of  dollars,  in  the 

manner  following,  to  wit  {set  forth  the  terms  and  times  of  payinent  as  agreed 
on).  And  upon  {set  forth  the  time  agreed  on)  the  said  party  of  the  first 
part  shall  give  to  the  said  party  of  the  second  part  possession  of  the  afore- 
said premises. 

And  for  the  true  performance  of  all  and  every  the  covenants  and  agree' 
ments  aforesaid,  each  of  the  ^aid  parties  bindeth  himself,  his  heirs,  executors, 
and  administrators  unto  the  other,  his  executors,  administrators,  and  assigns, 
in  the  penal  sum  of  dollars. 

In  Witness  Whereof,  The  said  parties  have  hereunto  set  their  hand* 
and  seals  the  day  and  year  first  above  written. 

{Signatures)         {Seals.) 
Signed,  Sealed,  atid  Delivered  in  Presence  of  ns, 

{If  it  is  intended  that  this  contract  slionld  be  recorded,  as  in  almost  all 
cases  it  should  be,  an  acknowledgment  by  both  parties  shotild folloixJ  j  aiid 
the  record  should  be  like  that  in  the  next  Form.) 

(145.) 
Power  of  Attorney  to  Sell  Lands. 

Know  all  Men  by  these  Presents,  That  I,  the  undersigned  {7iame 

of  the  selling  party)  of  the  town  {or  city)  of  .  County  of  , 

and  State  of  ,  have  this  day  made,  constituted,  and  appointed, 

and  do  by  these  presents  make,  constitute,  and  appoint  {name  of 


FORMS  OF  DEEDS.  5  03 

attorney)  of  the  town  (pr  city)  of  ,  in  the  County  of  , 

and  State  of  ,  my  true  and  l.iwful  attorney,  for  n:e 

and  in  my  name  to  sell  and  dispose  of,  absolutely,  in  fee-simple,  the  follow- 
ing described  lot,  tract,  or  parcel  of  ianJ,  or  any  part  thereof,  situate,  lying, 
and  being  in  the  County  of  and  Stale  aforesaid,  to  wit  (Jiere 

describe  carefully  the  land  or  premises  granted,  as  directed  in  Form  107) 
for  such  price  or  sum  of  money,  and  to  such  person  or  persons  as  he  shall 
think  fit  and  convenient ;  and  also  for  me  and  in  my  name,  and  as  my  act 
and  deed,  to  sign,  execute,  acknowledge,  and  deliver  such  deed  or  deeds, 
and  conveyance  or  conveyances,  for  the  absolute  sa'.e  and  disposal  thereof, 
or  of  any  part  thereof,  with  such  cl.iuse  or  clauses,  covenant  or  covenants, 
and  agreement  or  agreements,  to  be  therein  contained,  as  my  said  attorney 
shall  think  fit  and  expedient ;  hereby  ratifying  and  confirming  all  such  deeds, 
conveyances,  bargains,  and  sales  which  shall  at  any  time  hereafter  be  made 
by  said  attorney  touching  or  concerning  the  premises. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  seal,  on  this 
day  of  ,  A.D.  18 

{^Signature.)     {Seal.) 

State  of  ,  ^ 

>-  ss. 
County  of  ,   ) 

Be  it  Remembered,  That  on  this  day  A.D.  18         , 

before  the  undersigned,  a  notary  public  {or  other  magistrate)  within  and  for 
the  County  of  and  State  of  ,  personally  came 

{the  nai)ie  of  the  principal),  who  is  personally  known  to  me  to  be  the  same 
person  whose  name  is  subscribed  to  the  foregoing  instrument  of  writing, 
and  acknowledged  the  same  to  be  his  free  act  and  deed,  for  the  purposes 
therein  mentioned. 

In  Witness  Whereof,   I   have  hereunto   set  my  hand  and  affixed  my 
official  seal,  at  my  o(Kce  in  the  day  and  year  first  above  written. 

{Signature.)     {Seal.) 

State  of  '\ 

>-  ss.    •    IN  the  recorder's  office. 
County  of  ) 

I,  ,  Clerk  of  the  C'rcuit  Court,  and  ex-officio  Recorder  of 

said  county  {or  whoever  else  is  the  recording  office}'),  do  hereby  certify  that 
the  within  instrument  of  writing  was,  on  the  day  of 

A.D.  l8  ,  duly  filed  for  record  in  this  office,  and  is  recorded  in  the  Records 
of  this  office  in  Book  at  page 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  affixed  the  sea! 
of  said  court,  at  this  day  of 

A.  D.  18 

Recorder. 
Per  Deputy. 


504 


DEEDS  CONVEYING  LAND. 


(140  ) 

Trust  Deed  for  the  Benefit  of  a  "Wife,  or  some  other 

Person. 

This  Deed,  Made  and  entered  into  this  day  of 

eighteen  hundred  and  by  and  between         (iiame,  resi- 

dence, and  occjipation  of  the  grantor)  party  ot  the  first  part,  and 
(the  name,  residence,  and  occupation  of  the  trustee)  party  of  the  second  part, 
and  (name  of  the  wife  or  any  person   ivlio  is  to  Jiave  the  benefit 

of  the  trust)  party  of  the  third  part,  witnesseth  :  That  the  said  party  of  the 
first  part,  in  consideration  of  the  sum  of  dollars, 

to  him  in  hand  paid  by  the  said  party  of  the  thir-1  part,  the  receipt  of  which 
is  "hereby  acknowledged,  and  the  further  sum  of  one  dollar  to  him  paid  by 
the  said  party  of  the  second  part,  the  receipt  of  which  is  hereby  also  ac- 
knowledged, do,  by  these  presents,  give,  grant,  se'l  transfer,  convey,  and 
assign  unto  the  said  party  of  the  second  part,  the  following  described  tract 
or  parcel  of  land,  that  is  to  say  {here  describe  the  premises  carefully,  as  di- 
rected in  Form  107). 

To  Have  and  to  Hold  the  Same,  With  all  the  rights,  privileges,  and 
appurtenances  thereto  belonging,  or  in  any  wise  appertaining  unto  him,  the 
said  party  of  the  second  part,  his  heirs  and  assigns  forever  :  In  trust,  how- 
ever, to  and  fur  the  sole  and  separate  use,  benefit,  and  behoof  of 

wife   of  {or  the  name   of  the  son   or  daughter,   or 

any  other  person,  may  be  substituted  for  that  of  the  wife)  and  the  said 
party  of  the  second  part  hereby  covenants  and  agrees  to  and  with  the  said 
the  party  of  the  tliird  part,  th  U  he  will  suffer  and  permit 
her  {or  him),  witliout  let  or  molestation,  to  have,  hold,  use,  occupy,  and 
enjoy  the  aforesaid  premises,  with  all  the  rents,  issues,  profits,  and  pro- 
ceeds arising  therefrom,  whether  from  sale  or  lease,  for  her  own  sole  use 
and  ben^efit,  separate  and  apart  from  her  said  husband,  and  wholly  free  from 
his  control  and  interference,  debts  and  liabilities,  courtesy,  and  all  other  in- 
terests whatsoever ;  and  that  he  will  at  any  and  all  times  hereafter,  at  the 
request  and  direction  of  the  said  {name  of  the  iarty  of  the  tliird part) 

expressed  in  writing,  signed  by  her*  {or  him)  or  by  her  {or  his)  authority, 
bargain,  sell,  mortgage,  convey,  lease,  rent,  convey  by  deed  of  trust  for  any 
purpose,  or  otherwise  dispose  of  said  premises,  or  any  part  thereof,  to  do 
which  full  power  is  hereby  given,  and  will  pay  over  the  rents,  issues,  profits, 
and  proceeds  thereof  to  the  said  party  of  the  third  part,  and  that  he  will,  at 
the  death  of  the  said  party  of  the  third  part,  convey  or  dispose  of  the  said 
premises,  or  such  part  thereof  as  may  then  be  held  by  him  under  this  deed, 
and  all  profits  and  proceeds  thereof,  in  such  manner,  to  such  person  or  per- 
sons, and  at  such  time  or  times,  as  the  said  party  of  the  third  part  shall,  by 
her  {or  his)  last  will  and  testament,  or  any  other  writing  signed  by  her,  or 
by  her  authority,  direct  or  appoint ;  and  in  default  of  such  appointment,  that 
he  will  convey  such  premises  to  {here  state  what  it  is  intended  shall  be  done 
with  the  property  at  the  death  of  the  party  of  the  third  part  if  he  or  she  die 


FORMS  OF  DEEDS.  5 05 

intestate).  And  the  said  party  of  the  third  part  shall  have  power  at  any  time 
hereafter,  whenever  she  (^r/zf)  shall  from  any  cans  e  deem  it  necessary  or 
expedient,  by  an  instrument  in  writing  under  her  ipr  his)  hand  and  seal,  and 
by  her  {or  Jiiin)  acknowledged,  to  nominate  and  appoint  a  trustee  or  trustees, 
in  the  place  and  stead  of  the  party  of  the  second  part  above  named  ;  which 
trustee  or  trustees,  or  the  survivor  of  them,  or  the  heirs  of  such  survivor, 
shall  hold  the  said  real  estate  upon  the  same  trust  as  above  recited;  and 
upon  the  nomination  and  appointment  of  such  new  trustees,  the  estate  in 
trust  hereby  vested  in  said  party  of  the  second  part  shall  thereby  be  fully 
transferred  and  vested  in  the  trustee  or  trustees  so  appointed  by  the  said 
party  of  the  third  part.  And  said  party  of  the  first  part  hereby  covenants 
to  warrant  and  defend  the  title  to  the  said  real  estate  against  the  Iwful 
claims  of  all  persons  whomsoever,  to  the  said  parties  of  the  second  and  t';ird 
parts,  tlieir  heirs  and  assigns.  And  the  said  party  of  the  second  part  cove- 
nants faithfully  to  perform  and  fulfil  the  trust  herein  created. 

In  Testimony  Whereof,  The  said  parties  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above  written. 

{Signatures.)    {Seals.) 

The  State  of  ^ 

>•  ss. 
County  of  ) 

Be  it  Remembered,  That  on  the  day  of 

eighteen  hundred  and  ,  before  me,  the  undersigned 

came  {the  persons  who  execite  the  instrument)  who  are  personally  known 
to  me  to  be  the  same  persons  whose  names  are  subscribed  to  the  foregoing 
instrument  of  writing,  as  parties  thereto,  and  severally  acknowledged  the 
same  to  be  their  free  act  and  deed  for  the  purposes  therein  mentioned. 

{Signatni-e.) 

(147.) 

Trust  Deed  to  Secure  Payment  of  a  Note  without  Releasb 
of  Homestead  or  Dower. 

This  Deed,    Made  and  entered  into  this  day  of 

eighteen  hundred  and  by  and  between  {name  a?ia 

occupation  of  the  grantor  who  is  the  d.btor)  of  the  County  of 
State  of  ,  party  of  the  first  part,  and 

{name  and occnpatio7i  of  the  trustee)  of  the  County  of 

State  of  party  of  the  second  part,  and  {name 

and  occupatiojt  of  the  creditor  for  whose  benefit  the  deed  is  ?nade)  of  the 
County  of  State  of  party  of  the 

third  part : 

Witnesseth,  That  the  said  party  of  the  first  i)art,  in  consideration  of  the 
debt  and  trust  hereinafter  mentioned  and  created,  and  of  the  sum  of  one 
dollar  to  him  paid  by  the  said  party  of  the  second  part,  the  receipt  of  which 


5o6 


DEEDS  CONVEYING  LAND, 


is  hereby  acknowledged,   does  by  these  presents  grant,  bargain,   and  sell, 
convey  and  confirm  unto  the  said  party  of  the  second    part,   the  following 
described  real  estate,  situate,  lying  and  being  in  the  County  of 
and  State  of  ,  to  wit  (Jiere  describe  carefully  the  land  or 

pref/iises  granted,  as  described  i)i  Form  loj.) 

To  Have  and  to  Hold  The  same,  with  the  appurtenances,  to  the  party 
of  the  second  part,  and  to  his  successor  or  successors  in  this  trust,  and  to 
him  and  his  heirs,  and  his  and  their  grantees  and  assigns  forever. 

In  Trust,  However,  for  the  following  purposes  :  Whereas  the  said  party 
of  the  first  part  has  this  day  made,  executed,  and  delivered  to  the  said  party 
of  the  third  part,  his  promissory  note  ,  of  even  date  herewith,  by  which  he 
promises  to  pay  to  tlie  said  (name  of  the  creditor)  or  order,  for  value 

received,  ^go  dollars,  in  (the  days  or  vionths  when  the  note  is 

payable). 

Now  Therefore,  If  the  said  party  of  the  first  part,  or  any  one  for  him, 
shall  well  and  truly  pay  off  and  discharge  the  debt  and  interest  expressed  in 
the  said  note  and  every  part  thereof,  when  the  same  becomes  due  and  pay- 
able according  to  the  true  tenor,  date,  and  effect  of  said  note  ,  then  this 
deed  shall  be  void,  and  the  property  hereinbefore  conve3'ed  shall  be  released 
at  the  cost  of  the  said  party  of  the  first  part ;  but,  should  the  said  first  party 
tail  or  refuse  to  pay  the  said  debt,  or  the  said  interest,  or  any  part  thereof, 
when  the  same  or  any  part  thereof  shall  become  due  and  payable,  according 
to  the  true  tenor,  date,  and  effect  of  said  note  ,  then  the  whole  shall  be- 
come due  and  payable,  and  this  deed  shall  remain  in  force  :  and  the  said 
party  of  the  second  part,  or  in  case  of  his  absence,  death,  refusal  to  act,  or 
disability  in  any  wise,  the  (then)  acting  sheriff  of  County, 

,  at  the  request  of  the  legal  holder  of  the  said  note  ,  may 
proceed  to  sell  the  property  hereinbefore  described,  or  any  part  thereof,  at 
public  vendue,  to  the  highest  bidder,  at  in  the 

of  County,  ,  for  cash,  first  giving 

days'  public  notice  of  the  time,  terms,  and  place  of  sale, 
and  of  the  property  to  be  sold,  by  advertisement  in  some  newspaper  printed 
and  published  in  the  of  ,  and  upon  such  sale 

shall  execute  and  dehver  a  deed  in  fee-simple  of  the  property  sold  to  the  pur- 
chaser or  purchasers  thereof,  and  receive  the  proceeds  of  said  sale  ;  and  any 
statement  of  facts  or  recital  by  the  said  trustee,  in  relation  to  the  non-pay- 
ment of  the  money  secured  to  be  paid,  the  advertisement,  sale,  receipt  of  the 
money,  and  the  execution  of  the^leed  to  the  purchaser,  shall  be  received  as 
prim'v  facie  evidence  of  such  fact ;  and  such  trustee  shall,  out  of  the  pro- 
ceeds of  said  sale,  pay,  first,  the  cost  and  expenses  of  executing  this  trust, 
including  legal  compensation  to  the  trustee  for  his  services,  and  next  shall 
apply  the 'proceeds  remaining  over  to  the  payment  of  said  debt  and  interest, 
or  so  much  thereof  as  remains  unp  lid,  and  the  remainder,  if  any,  shall  be 
paid  to  the  said  party  of  the  first  part,  or  his  legal  representatives.  And  the 
said  party  of  the  second  part  covenants  faithfully  to  perform  and  fulfil  the 


FORMS  OF  DEEDS.  5  07 

trust  herein  created,  not  being  liable  or  responsible  for  any  mischance  occa- 
sior.ed  by  others. 

In  Witness  Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  an  1  year  first  above  written. 

{Signature  of  party  of  the  Jirsi  part.)  {Seal.) 

{Signature  of  party  of  the  second  part)        {Seal.) 
{Signature  of  party  of  the  third  part.)         {Seal.) 
Signed,  Sealed,  and  Delivered  in  Presence  of  us 

State  of  ) 

>  ss. 
County  of  ) 

Be  it  Remembered,  That  on  this  day  of 

A.  D.  18  ,  before  the  undersigned,  a  within  and 

for  the  County  of  and  State  of  ,  personally 

came  {names  of  all  the  parties  executing  the  deed)  who  are  personally 

known  to  me  to  be  the  same  persons  whose  names  are  subscribed  to  the 
foreo-oing  instrument  of  writing,  as  parties  thereto,  and  acknowledged  that 
they  executed  the  same  for  the  uses  and  purposes  therein  mentioned. 

In  Testimony  Whereof,  I  have  hereto  set  my  hand  and  affixed  my  offi- 
cial seal  at  my  office  in  the  day  and  year  first  above  written. 

{Signature.)     {Seal.) 

(148.) 

Deed  of  Trust  to  Secure  a  Debt;  Fuller  Form,  and  with 
Release  of  Dower. 

This  Deed,  Made  and  entered  into  this  day  of 

eighteen  hundred  and  ,  by  and  between 

{name  ajid  occupation  of  the  debtor  -who  is  grantor)  and  {name  of  the 

wife  of  the  grantor)  of  {residence)  parties  of  the  first  part,  and 

{name  of  the  grantees  luho  are  the  trustees)  of  {residence)  parties  of  the 

second  part,  and  {name,  residence,  and  occ7ipatio7i  of  the  creditor  for 

whose  benefit  the  trust  is  created)  of  party  of  the  third  part,  wit- 

nesseth,  that  the  said  parties  of  the  first  part,  in  consideration  of  the  debt 
and  trust  hereinafter  mentioned  and  created,  and  of  the  sum  of  one  dollar  to 
them  paid  by  the  said  parties  of  the  second  part,  the  receipt  of  which  is 
hereby  acknowledged,  do  by  these  presents  grant,  bargain,  and  sell,  convey 
and  confirm,  unto  the  said  parties  of  the  second  part,  the  following  described 
real  estate,  to  wit :  {here  describe  carefiilly  the  latid  or  premises  granted,  by 
metes  and  bounds.,  as  directed  in  Form  107.) 

To  Have  and  to  Hold  the  same,  with  the  appurtenances,  to  the  said  par- 
ties of  the  second  part,  and  to  the  survivor  of  them,  and  to  their  successor 
hereinafter  designated,  and  to  the  assigns  of  the  said  parties  of  the  second 
part,  or  of  said  survivor,  or  of  said  successor  and  his  heirs  forever. 

In  Trust,  however,  for  the  following  purpose  :  Whereas  the  said 


5o8  DEEDS  CONVEYING  LAND. 

{name  of  the  grantor)  {here  describe  the  debt,  and  if  a  promissory  note 

is  given^  describe  that,  or  set  forth  a  copy  of  if)  and  has  also  agreed  and 
covenanted  to  and  with  the  said  party  of  the  tliird  part,  and  his  indorsees  or 
assignees,  to  cause  all  taxes  and  assessments,  general  and  special,  to  be  paid 
within  the  times  required  by  law,  whenever  imposed  upon  said  property,  and 
has  also  further  covenanted  and  agreed  to  and  with  said  party  of  the  third 
part,  his  indorsees  or  assignees,  that  he  will  keep  the  improvements  upon 
said  property  constantly  insured  in  some  good  and  responsible  insurance 
office  or  offices,  to  be  approved  by  said  party  of  the  third  part,  his  indorsees 
or  assignees,  in  a  sum  not  less  than  dollars,  until  said 

notes  are  {or  note  is)  fully  paid,  and  will  assign  the  policy  or  policies  of  insur- 
ance to  said  party  of  the  third  part,  his  indorsees  or  assignees,  with  full 
power  to  demand,  receive,  and  collect  any  and  all  moneys  accruing  under 
said  insurance,  and  the  same  to  apply  to  the  payment  of  said  notes  and  the 
interest  that  may  accrue  thereon,  unless  otherwise  paid,  when  the  same 
become  due,  and  has  also  covenanted  and  agreed  to  and  with  said  party  c^ 
the  third  part,  his  indorsees  or  assignees,  that  there  shall  not,  at  any  tim«5 
while  said  notes  remain  unpaid,  be  any  mechanics'  Hens  filed  or  taken  upoD 
the  real  estate  herein  described,  or  upon  the  buildings  which  now  are,  o' 
may  hereafter  be,  erected  upon  said  real  estate,  and  that  should  said  party  of 
the  first  part  fail  or  neglect  to  pay  said  taxes,  when  the  same  are  by  law  dm- 
and  payable,  or  fail  or  neglect  to  effect  insurance  and  assign  the  policy  or 
policies  as  above  provided,  or  fail  or  neglect  to  keep  said  real  estate  free 
from  mechanics'  liens,  the  said  party  of  the  third  part,  his  indorsees  or 
assignees,  may,  at  his  option,  consider  the  notes  above  mentioned  and 
described,  as  having  each  and  all  become  due  and  payable,  though  not  then 
due  by  the  tenor  and  effect  thereof,  and  may  require  the  said  parties  of  the 
second  part,  or  the  survivor  of  them,  or  their  successor  in  trust,  to  sell  the 
property  above  described  as  hereinafter  provided,  or  may  pay  said  taxes,  or 
the  premium  for  such  insurance,  or  the  amount  of  said  mechanics'  liens,  and 
ihe  amount  or  amounts  so  paid,  together  with  interest  thereon,  at  the  rate  of 
(ten)  per  cent,  per  annum,  shall  be  taken  and  considered  as  a  part  of  the 
amount  secured  hereby,  and  to  be  paid  and  refunded  out  of  the  proceeds  of 
sale,  should  such  sale  be  made,  as  hereinafter  provided. 

Now,  if  the  said  notes  be  well  and  truly  paid,  as  the  same  severally 
become  due  and  payable,  according  to  the  tenor  and  effect  of  said  notes,  and 
each  of  them,  and  if  the  said  covenants  and  agreements  in  regard  to  taxes, 
insurance,  and  mechanics'  liens  be  faithfully  kept  and  performed,  and  all 
moneys  paid  by  said  third  party,  his  indorsees  or  assignees,  on  account  of 
said  taxes,  insurance,  and  mechanics'  liens,  are  refunded,  with  the  interest 
thereon,  as  above  provided,  then  this  deed  shall  be  void,  and  the  property 
hereinbefore  conveyed  shall  be  released  at  the  cost  of  the  said  parties  of  the 
first  part ;  but  should  default  be  made  in  the  payment  of  the  said  notes,  or 
either  of  them,  or  any  part  of  either  of  them,  or  of  the  interest  that  may 
d-ccrue  thereon,  or  any  part  thereof,  as  the  same  severally  become  due  and 


FOR.US  OF  DEEDS. 


509 


paj-able,  or  if  the  said  parties  of  the  first  part  fail  or  neglect  to  pay  said 
taxes,  when  due  and  payable,  or  to  insure  the  buildings  on  said  property,  or 
to  keep  the  same  free  from  mechanics'  liens,  as  provided  in  the  foregoing 
covenants  and  agreements,  or  to  refund  to  said  party  of  the  third  part,  his 
indorsees  or  assignees,  the  amount  paid  by  him  or  them  for  said  taxes,  insur- 
ance, or  mechanics'  liens,  with  interest  thereon,  as  above  provided,  then  this 
deed  shall  remain  in  force,  and  the  said  parties  of  the  second  part,  or  either 
of  them,  or  the  survivor  of  them,  or  in  the  event  of  the  death  of  both  of  them, 
or  absence  from  this  State,  or  their  refusal  to  act,  or  other  disqualification  for 
the  performance  of  the  duties  of  this  trust,  then,  at  the  request  of  the  holder 
of  said  notes,  the  sheriff  of  the  county  of  for  the  time  being 

(who  shall  thereupon  become  the  successor  of  said  trustees,  and  of  the  sur- 
vivor of  them,  to  the  title  of  said  property,  and  the  same  become  vested  in 
him,  in  trust  for  the  purposes  and  objects  of  these  presents,  with  all  the 
powers,  duties,  and  obligations  thereof^  may  proceed  to  sell  said  described 
property,  or  any  part  thereof,  at  public  vendue,  to  the  highest  bidder,  for 
cash,  at  the  {sfafe  the  place  of  sale)  first  giving  twenty  days'  public 

notice  of  the  time,  terms,  and  place  of  said  sale,  and  the  property  to  be  sold, 
by  advertisement  in  some  newspaper  printed  in  the  English  language,  and 
published  in  the  county  of  and  upon  such  sale,  the  said  parties 

of  the  second  part,  or  either  of  them,  or  the  sur\-ivor  of  them,  or  their  suc- 
cessor in  trust,  the  sheriff  of  said  county,  as  the  case  may  be,  shall  execute 
and  deliver  a  deed  or  deeds,  in  fee-simple,  of  the  property  sold,  to  the  pur- 
chaser or  purchasers  thereof  (a  recital  wherein  of  the  request  of  the  holder 
of  said  notes  that  they  should  proceed  to  sell,  of  the  publication  of  said 
notice,  and  in  case  of  sale  b)'  the  sheriff  of  said  count}-,  of  the  happening  of 
any  or  either  of  the  events  making  him  successor  in  this  trust,  shall  be 
received  in  all  courts  of  law  or  equity,  and  to  all  intents  and  purposes,  as  full 
and  sufficient  proof  thereof),  and  shall  receive  the  proceeds  of  said  sale,  out 
of  which  shall  be  paid,  first,  the  cost  and  expenses  of  executing  this  trust, 
including  compensation  to  said  trustee,  or  said  sheriff,  for  their  or  his  services, 
next  the  amount  paid  by  said  party  of  the  third  part,  or  his  indorsees  01 
assignees  for  taxes,  insurance,  or  mechanics'  liens,  with  (ten)  per  cent,  per 
annum  interest  thereon,  from  the  date  of  the  payment  thereof,  and  next,  the 
amount  remaining  unpaid  upon  the  principal  note  above  described,  together 
with  all  the  interest  notes  then  due,  and  so  much  of  the  interest  note,  next 
falling  due,  as  may  be  necessary  to  satisfy  the  interest  on  said  principal  note 
at  the  rate  of  per  cent,  per  annum  from  the  date  when  the  preceding 

interest  note  became  due,  up  to  the  day  of  sale,  it  being  distinctly  understood 
and  agreed  between  the  parties  hereto,  that  the  failure  to  pay  any  one  of  said 
notes,  principal  or  interest,  when  due  and  payable,  shall  cause  the  principal 
note  to  become  immediately  due  and  pavable,  though  not  th.en  due  by  the 
terms,  tenor,  or  effect  thereof,  and  the  remainder,  if  anv,  shall  be  paid  to  the 
said  parties  of  the  first  part  or  their  legal  representatives. 

And  the  said  parties  of  the  second  part  covenant  faithfully  to  perform  and 
fulfil  the  trust  herein  created. 


5IO 


DEEDS  CONVEYIXG  LAND. 


In  WitneEO  Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

{Si^na/nre  of  i^raafor.)  {Seal.) 

{Sii^nature  of  grantor  s  wife.)  {Seal.) 

{Si'jnature  of  trustee.)  {Seal.) 

{Signatiire  rf  other  trustee)  {Seal.) 

{Signature  of  creditor.)  {Seal.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  ) 

Us. 
County  of  ) 

Be  it  Hemembered,  That  on  this  day  of 

eighteen  hundred  and  before  me,  the  undersigned, 

came  {name  of  the pai'ties  ivho  execute  the  deed)  who  are  personally  known 
to  me  to  be  the  same  persons  whose  names  are  subscribed  to  the  foregoing 
instrument  of  ivriting,  as  parties  thereto,  and  acknowledged  the  same  to  be 
their  act  and  deed  for  the  purposes  therein  mentioned. 

And  the  said  having  been  by  me  first 

made  acquainted  with  the  contents  of  said  instrument,  on  an  examination 
separate  and  apart  from  her  husband,  acknowledged  that  she  executed  the 
same  freely  and  without  compulsion  or  undue  influence  of  her  said  husband. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  seal  of  office 
the  day  and  year  first  above  written. 

(149.) 

Trust  Deed  to  Secure  a  Note,  Shorter  Form,  but  with 
"Warranty,  and  Release  of  Homestead  and  Dower. 

This  Indenture  Witnesseth,  That  {name,  residence,  and  occupation 
of  grantor)  and  {name  of  the  ivife  of  grantor)  wife  of  the  grantor  herein, 

in  consideration  of  the  indebtedness  hereinafter  mentioned,  and  one  dollar  (5 1) 
to  them  paid  by  {name,  residence,  and  occupation  of  the  trustee) 

grantee     ,  the  receipt  whereof  is  hereby  acknowledged,  do  hereby  grant, 
bargain,  sell,  remise,  release,  and  convey  unto  the  said  grantee     ,  the  follow- 
ing described  lot     ,  piece     ,  or  parcel     of  land,  situate  in  the 
county  of  and  State  of  to  wit :  {here 

describe  carefully  the  land  or  premises  granted,  as  directed  in  Form  107). 

To  Have  and  to  Hold  the  same,  with  all  the  privileges  thereunto  or  in 
anywise  appertaining,  and  all  the  estate,  right,  title,  interest,  claim,  or  demand 
in  and  to  the  same,  either  now  or  which  may  be  hereafter  acquired,  unto  the 
said  grantee,  his  heirs  and  assigns.  In  trust,  nevertheless,  for  the  following 
purposes : 

Whereas,  Th.e  said  {name  of  the  grantor)  ^z.n\.or\\^r(t\x\,\i,  justly 

indebted  upon  a  certain  promissory  note,  bearing  even  date  herewith,  pay- 
able to  the  order  of  {here  describe  the  note) 


rOA'J/S  OF  DEEDS. 


511 


Now,  In  case  of  default  in  the  payment  of  said  note,  or  any  part  thereof, 
or  the  interest  accruing  thereon,  according  to  the  tenor  and  effect  thereof, 
or  in  the  payment  of  any  taxes  or  assessments,  ordinary  or  special,  which 
may  be  levied  or  assessed  against  said  premises  during  the  continuance 
hereof,  on  the  application  of  the  legal  holders  of  the  said  note,  the  said 
grantee  (full  power  being  hereby  given),  or  his  legal  representatives,  after 
having  advertised  such  sale  days  in  a  newspaper  published  in 

or  by  posting  up  written  or  printed  notices  in  four  (4)  public 
places  in  the  county  where  said  premises  are  situate  (personal  notice 
being  hereby  expressly  waived),  shall  sell  the  said  premises,  or  any  part 
thereof,  and  all  the  right  and  equity  of  redemption  of  the  said  grantor,  or  his 
heirs,  executors,  administrators,  or  assigns  therein,  at  public  vendue,  to  the 
highest  bidder  for  cash,  at  at  the  time  appointed  in  the  said 

advertisement,  or  may  adjourn  the  sale  from  time  to  time  at  discretion  and 
as  the  attorney  of  said  grantor,  for  such  purpose  hereby  constituted  irre- 
vocable, or  in  the  name  of  the  said  grantee  or  his  legal  representatives,  shall 
execute  and  deliver  to  the  purchaser  or  purchasers  thereof,  deeds  for  the 
conveyance  in  fee  of  the  premises  sold,  and  shall  apply  the  proceeds  of  sale 
(ist)  to  the  payment  of  all  advances  made  by  the  said  party  of  the  second  part 
for  taxes  and  assessments ;  and  expenses  for  advertising,  selling,  and  con- 
veying as  aforesaid,  including  attorney's  fees,  and  (2d)  the  amount  due  on 
said  note,  (3d)  rendering  the  overplus,  if  any  there  be,  to  the  said  grantor  or 

legal  representatives,  at  the  office  of  the  said  grantee  in 
and  it  shall  not  be  the  duty  of  the  purchaser  to  see  to  the  application  of  the 
purchase  money. 

And  the  said  {tiamcs  of  the  grantor  and  of  his  wife)  parties  of  tlie 

first  part,  hereby  expressly  waive,  release,  and  r&linquish  unto  the  said  party 
of  the  second  part,  the  said  grantee,  his  heirs,  executors,  administrators,  and 
assigns,  all  right,  title,  claim,  interest,  and  benetit  whatever,  in  and  to  th» 
above-described  premises,  and  each  and  every  part  thereof,  which  is  giveu 
by  or  results  from  all  laws  of  this  State  pertaining  to  the  exemption  of  hooie- 
steads  :  Provided,  that  the  said  grantor  and  his  heirs  and  assigns  may  hold 
and  enjoy  said  premises,  and  the  rents,  issues,  and  profits  thereof,  until 
default  shall  be  made  as  aforesaid,  and  that  when  the  said  note  and  all 
expenses  accruing  hereby  shall  be  fully  paid,  the  said  grantee  or  his  legal 
representatives,  shall  reconvey  all  the  estate  acquired  hereby  in  the  said 
premises,  or  any  part  thereof,  then  remaining  unsold,  to  (and  at  the  cost  of) 
the  said  grantor,  or  his  heirs  or  assigns. 

And  the  said  grantor  covenants  with  the  said  grantee  and  with  his  lega 
representatives  and  assigns  that  he  is  seized  in  fee  of  the  said  premises, 
and  has  good  right  to  convey  the  same  in  form  aforesaid,  that  they  are 
free  from  all  liens  or  incumbrances  of  whatever  name  or  nature,  and  that 
he  will  warrant  and  defend  the  same  against  all  claims  whatsoever,  and  will 
pay  all  taxes  or  assessments  levied  or  assessed  on  the  said  premises,  or  any 
part  thereof,  during  the  continuance  hereof,  and  pay  the  same  ten  days 
before  the  day  of  sale  thereof. 


512  DEEDS  CONIEYING  LAND. 

Witness  the  liands  and  seals  of  the  sail  {names  of  tJie grantof 

andhis 'ivifc)i\\\^  day  of  A.D.  18     . 

{Sig)int7trc  of  grantor.)  (Seal.) 

{Signature  of  wife  of  grantor^    {Seal.) 
In  Presence  of 

State  of  ) 

COUNTV.      ) 

On  the  day  of  eighteen  hundred  and 

before  me  of  the  County  of  in  the  State  of 

appeared  {name  of  the  grantor)  personally  known  to  me  to  be  the  real 

person  whose  name  is  subscribed  to  the  foregoing  deed  of  trust,  as  having 
executed  the  same,  and  then  acknowledged  the  execution  thereof  as  liis  free 
act  and  deed  for  the  uses  and  purposes  herein  mentioned. 

And  the  said  {name  of  t/i.i  wife   of  grantor)  (who  is  personally 

known  to  me  to  be  the  same  person  who  subscribed  the  said  instn.ment  oi 
writing),  having  had  the  contents  of  the  said  instrument  made  known  anc' 
fully  explained  to  her,  and  she  also  by  me  being  fully  informed  of  her  rights* 
under  the  Homestead  Laws  of  the  State,  and  being  by  me  examined,  sepa^ 
rate  and  apart  from  her  said  husband,  did  acknowledge  said  instrument  to 
be  her  free  act  and  deed  ;  that  she  executed  the  same,  and  relinquished  her 
dower  in  the  lands  and  tenements  therein  mentioned,  and  also  all  her  rights 
and  advantages  under  and  by  virtue  of  all  laws  of  this  State  relating  to  the 
exemption  of  homesteads,  voluntarily  and  freely,  and  without  the  compul 
sion  of  her  husband,  and  that  she  does  not  wish  to  retract. 

Given  under  my  hand  and  official  seal,  this  day  of 

A.D.  18    . 

{Signature.)         [SeaL) 

(150.) 
Deed  from  Trustor g. 

This  Deed,  Made  and  entered  into  this  day  of  A.D. 

eighteen  hundred  and  by  and  between  {names  of  trustees] 

party  of  the  first  part,  and  {name,  residence,  cr.d  occupation  of  grantee) 

party  of  the  second  part,  witnesseth,  that  whereas  {name  of  the  party 

who  conveyed  the  estate  to  the  tncstees)  by  deed  dated  the  day  of 

18     ,  recorded  in  the  Recorder's  office  of  County, 

State  of  in  book  conveyed  the  property  hereinafter 

described  in  trust  to  said  {name  of  trustees)  to  secure  the  payment  c£ 

certain  promissory  notes  in  said  deed  described,  and  whereas  {here 

describe  the  non-payment  or  other  default  which  has  authorised  the  sale  by 
the  trustees)  and  the  party  herein  of  the  first  part,  at  the  request  of  the  legal 
holder  of  said  promissory  notes  acting  in  pursuance  of  the  provisions  of  said 
deed  of  trust,  and  having  first  given  days'  public  notice  of  the  time, 

terms,  and  place  of  sale,  and  of  the  property  to  be  sold,  by  an  advertise- 


N 


FORMS  OF  DEEDS.  5  r  3 

ment  inserted  on  the  day  of  A.D. 

i:-,  the  a  daily  newspaper  printed  in  the  city  of 

and  continued  to  the  day  of  sale  (as  will  appear  by  the  copy  of  said  adver. 

tisement  and   affidavit   of  publicaiion  thereof  he.ei.o  annexed  as  a  part  ot 

this  deed)  did  proceed  to  sell  the  property  described  in  said  deed  at  public 

vendue  to  the  highest  bidder  for  cash  at  in  the  city  of 

on  the  day  cf  18     , 

between  the  hours   of  ten  o'clock  in  the  morning  and  five  o'clock  in  the 
afternoon  of  said  day,  when  and  where  the  same  was  struck  off  to 
{the  name  of  the  purchaser  luho  is  the  grantee)  as  the  highest  and  last  bidder 
therefor,  at  the  price  and  sum  of  dollars,  full  payment  whereof  is 

hereby  acknowledged  ;  now,  said   party  of  the   first  part,  by  \'irtue   of  the 
proceedings  aforesaid,  and  in  consideration  of  the  sum  of 
dollars  to  hi:n  in  hand  paid  by  said  party  of  the  second  part,  does  by  these 
presents  bargain,  sell,  and  convey  to  said  {tiaine  of  the  grantee)  all 

the  right,  title,  and  interest  (which  by  virtue  of  said  trust  deed  and  the  pro- 
ceedings aforesaid  he  may  or  can  bargain,  convey,  or  sell)  in  and  to  the 
property  described  in  said  deed  of  trust,  to  wit  {here  describe  the  land  01 
pre7nises  granted  in  the  same  ivay  iti  which  they  are  described  in  the  deed  oj 
trust  under  which  the  trustees  act.) 

To  Have  and  to  Hold  the  said  de^^cribed  premises  unto  said  {natne 

of  the  purchase)-)  and  unto  his  heirs  and  assigns  forever. 

In  "Witness  "Whereof,  the  said  party  of  the  first  part  has  hereto  set  his 
hand  and  seal  the  day  and  year  first  herein  above  written. 

(Signatures)    {Seals.) 

In  Presence  of 

State  of  ,  ") 

>-  ss. 
County.  ) 

Be  it  Remembered,  that  on  this  day  of  A.D.  18        , 

before  me,  the  undersigned,  personally  came  who  ate 

to  me  personally  known  to  be  the  same  persons  whose  names  are  subscribed 
to  the  foregoing  instrument  of  writing  as  parties  thereto,  and  they  acknowl- 
edged the  same  to  be  their  act  and  deed  for  the  purposes  therein  mentioned. 

{Signature) 

(151.) 
Deed  of  Master  in  Chancery. 
This  Indenture,  Made  this  day  of  A.D.  18     ,  betweei 

KTiaine  of  grantor)  Master  in  Chancery,  in  and  for  the  County  of 
and  State  of  ,  of  the  first  part,  and  {name  of  grantee)  of 

the  second  part,  witnesseth  :  That  whereas,  at  the  term  of  the 

court  of  the  said  County  of  and  State  of  , 

In  the  year  of  our  Lord  A.D.  18  ,  in  a  certain  suit  and  proceedings  in 
chancery,  pending  in  said  court,  wherein  were  complainants, 

33 


514  DEEDS  CONVEYING  LAND. 

and  were  defendants,  to  obtain  a  decree  for  the  sale  of  the 

property  hereinafter  described,  and  for  other  relief,  it  was  ordered,  adjudged, 
and  decreed  by  the  court,  that  {here  set  forth  the  decree  under  which  the  sale 
is  made)  and  the  Master  in  Chancery,  in  and  for  the  County  of 
and  State  ot  was  appointed  to  execute  the  said  decree,  and  to 

make,  execute,  and  deliver  to  the  complainants  a  deed  to  the  said  premises  as 
aforesaid,  conveying  to  {the  name,  residence,  atid  occupatioti  of  the 

grantees)  all  the  interest  and  title  of  the  defendant     to  said  premises. 

Now,  therefore,  Knov/  all  Men  by  this  Deed,  That  I, 
Master  in  Chancer}-  as  aforesaid,  in  consideration  of  one  dollar,  to  me  paid 
by  the  said  party  of  the  second  part,  the  receipt  whereof  I  acknowledge 
before  the  execution  hereof,  and  by  virtue  of  the  decree  aforesaid,  have 
granted,  bargained,. and  sold,  and  do  hereby  grant,  bargain,  and  sell  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns  forever,  the  follow- 
ing-described real  estate,  lying  in  the  County  of  and  State  of 
to  wit  (here  describe  carefully  the  land  or  premises  granted, 
as  directed  in  Form  107). 

To  Have  and  to  Hold  the  said  premises,  with  all  the  appurtenances 
thereto  belonging,  unto  the  said  party  of  the  second  part,  his  heirs  and 
assigns  forever. 

In  Testimony  "Whereof,  Tlie  said  Master  in  Chancery 

of  County,  in  the  State  of  ,  has  hereto  set  his 

hand  and  seal  the  day  and  year  first  above  written. 

'Signature)    {Seal) 

In  Presence  of 

State  of  ,  "> 

>  ss. 

COUNVV.  ) 

I,  clerk  of  the  county  court  in  and  for  the  Cour.Ty 

of  and  State  of  ,  do  hereby  certify,  that  the 

above-named  whose  name  appears  signed  to  the  foregoing 

deed  is  personally  known  to  me  to  be  the  same  person  described  therein, 
and  acknowledge  J  to  me  that,  as  master  in  chancery  aforesaid,  he  executed 
the  said  deed  freely  for  the  uses  and  purposes  therein  mentioned- 

Given  under  my  hand  and  official  seal  at  this 

day  of  A.D.  18      . 

{Signature)        Clerk.    {Seal) 

(162.) 
Sheriff's  Deed  on  Execution,  in  use  in  the  "Western  States. 

"Whereas,  {the  name  of  the  plaintiff  in  the.  suit  in  which  the  execu- 

tion issued)  did  at  the  term,  A.D.  eighteen  hundred  and 

of  the  court  for  the  County  of  in  the 

State  of  ,  recover  a  judgment  against  (name  of  the  defendant 


FORMS  OF  DEEDS.  5  i  5 

in  that  suit)  for  the  sum  of  and  costs  of  suit,  upon  which 

judgment  and  execution  was  issued,  dated  on  the  day  of 

A.  D.  eighteen  hundred  and  directed  to  the  sheriff  of 

County,   to  execute,  and  by  virtue  of  said  execution  {name  of  the 

sheriff)  of  then  sheriff  of  said  count}-,  levied  upon  the  lands 

hereinafter  described,  and  the  same  were  struck  off  and  sold  to  {tiatne 

of  the  purchaser  at  the  sheriff  ""s  sale)  he  being  the  highest  and  best  bidder 
therefor,  and  the  time  and  place  of  the  sale  thereof  having  been  duly  adver- 
tised according  to  law. 

And  the  said  {name  of  the  purchaser)  having  duly  assigned  his 

certificate  of  purchase  to  {name  of  the  grantee) 

Now  therefore,  Know  all  by  this  Deed,That  I,  {name  of  the 

sheriff^  sheriff  of  said  County  of  in  consideration  of  the 

premises,  have  granted,  bargained,  and  sold,  and  do  hereby  convey  to  the 
said  {name  of  the  i^rantee)  his  heirs  and  assigns,  the  following  described 

tract  of  land,  to  wit  {here  describe  carefully  the  land  or  premises  granted,  as 
directed  in  Form  107). 

To  Have  and  to  Hold  the  said  described  premises,  with  all  the  appurte- 
nances thereto  belonging,  to  the  said  {name  of  the  grantee)  and  his 
heirs  and  assigns  forever. 

Witness  my  hand  and  seal  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and 

{Signature.)    {Seal.) 

In  Presence  of 

Sheriff  of  County. 

State  of  ,"> 

County  of  ) 

I,  clerk  of  the  court  of 

County,  do  certify  that  sheriff  of 

County,  personally  known  to  me  to  be  the  real  person  whose  name  is  sub- 
scribed to  the  within  annexed  deed,  this  day  acknowledged  before  me  that 
he  executed  the  said  deed,  as  such  sheriff,  voluntarily  and  freely,  for  the  use 
and  purposes  therein  set  forth. 

Given  under  my  hand,  and  the  seal  of  said  court,  this 
day  of  eighteen  hundred  and 

{Signature)  Clerk.    {Seal.) 

(153.) 

Sheriff's  Deed,  in  use  in  New  England. 

Know  all  Men  by  these  Presents,  That  I  {name  of  the  deputy 

sheriff  selling)  of  in  the  County  of  and 

State  of  ,  and  a  deputy  sheriff  under  {name  of  the 

sheriff),  Esq.,  sheriff  of  said  county,  having,  on  the  •  day 


5l6  DEEDS  CONVEYING  LAND. 

of  in  the  year  of  our  Lord  one  thousand  ei;:ht  hundred 

and  ,  by  virtue  of  a  writ  of  execution,  which  was  issued  upon  a 

judgment,  recovered  at  the  term  of  the  court  holden  at  within 

and  for  the  County  of  on  tlie  in  the 

year  of  our  Lord  eighteen  hundred  and  ,  by  {name 

of  the  plaintiff  ill  the  suit)  of  in  the  County  of 

against  (tiaine  of  the  defendant  in  the  siiit)  of 

in  the  County  of  for  the  sum  of  dollars  and 

cents  damage  and  costs  of  suit  taxed  at  dollars  and 

cents,  seized  and  taken  all  the  right  in  equity  which  the 

said  had  on  the  day  of 

in  the  year  of  our  Lord  eighteen  hundred  and  being  the  time  when 

the  same  was  attached  on  mesne  process  of  redeeming  the  following-de- 
scribed mortgaged  real  estate,  to  wit :  {here  describe  carefully  the  land 
or  premises  gratited,  as  directed  in  Form.  107)  and  having  on  the 

day  of  '        last,  being  thirty  days  at  least  before  the  time 

of  the  sale  hereinafter  mentioned,  given  notice  in  writing  to  the  said 
{najfie  (f  the  defefidant)  of  the  time  and  place  of  sale,  and  having  posted  uj 
notifications  thereof  in  one  public  place  in  said  town  of 
and  in  one  public  place  in  each  of  the  towns  of  and 

being  two  towns  adjoining  said  town  of  and  also  having 

caused  an  advertisement  of  the  time  and  place  of  sale,  to  be  published  three 
weeks  successively,  before  the  day  of  sale,  in  the  public  newspaper  called  the 
printed  at  in  said  county  of 

on  the  day  of  in  the  year  of  our  Lord  eighteen 

hundred  and  made  sale  of  said  right  in  equity  of  redemp« 

tion  at  public  auction,  to  {name  of  the  purchaser)  of  m 

;  he  being  the  highest  bidder  for  the  same,  for  the  sum  o' 
dollars.  Now,  therefore,  in  consideration  of  said  sum  of 
dollars  to  me  paid  by  the  said  {name  of  the  purchasei^ 

the  receipt  whereof  I  do  hereby  acknowledge,  I  have  given,  granted,  ba!« 
gained,  and  sold,  and  do,  by  these  presents,  give,  grant,  bargain,  sell,  and  con. 
vey  to  the  said  {name  of  the  purchaser)  his  heirs  and  assigns  forever,  all 
the  right  in  equity  which  the  said  {name  of  the  defendant)  had  of  redeeming 
the  aforesaid  mortgaged  real  estate,  at  the  time  aforesaid  To  have  and  to 
hold  the  same  to  the  said  {name  of  pu)'chaser)  his  heirs  and  assigns, 

to  his  and  their  use  forever  :  subject,  however,  to  be  redeemed  agreeably  to 
the  law  in  such  case  made  and  provided.     And  1,  the  said  {name  of 

grantor)  in  my  said  capacity  of  deputy  sheriff,  do  covenant  with  the  said 

{name  of  purchaser)  as  aforesaid,  that,  in  making  said  sale,  and  in  every- 
thing concerning  the  same,  I  have  complied  with,  and  observed  the  rules  and 
requisitions  of  the  law  for  making  sales  of  rights  in  equity  to  redeem  real 
estate.     But  I  do  not  warrant  or  defend  to  the  said  {natne  of  the  pur- 

chaser) that  the  said  {naine  of  the  defendant)  had  any  right,  title,  or 

interest  in  said  estate  at  the  time  aforesaid. 


FORMS  OF  DEEDS. 


S^7 


In  "Witness  "Whereof,  I,  the  said  in  my  said  capacity  of 

Jeputy  sheriff,  have  hereunto  set  my  hand  and  seal  this  day 

of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and 

{Signature.)    {Seal.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

ss.  iS     .     Then  the  above-named 

personally  appeared,  and  acknowledged  the  above  instrument  by  him  signed, 
to  be  his  free  act  and  deed.     Before  me, 

jfustice  of  the  Peace. 

(154.) 

Sheriff's  Tax  Deed,  in  use  in  the  "Western  States. 

Know  all  Men  by  these  Presents,  That  whereas,  at  the 
Term  ,  A.D.  i8        ,  of  the  Court  of  County, 

i\\  judgment  was  obtained  in  said  court,  in  favor  of  the  State  of 
stgainst  the  following-described  lot     ,  piece     ,  or  parcel    of  land,  for  the  sum 
lerein  specified,  to  wit,  the  sum  of    {here  state  in  writing  the  amount  of  the 
tax);  said  sum  being  the  whole  amount  of  taxes,  interest,  and  costs  assessed 
upon  said  lot    ,  piece,         or  parcel        of  land,  for  the  year  i8 

And  whereas,  on  the  day  of  A.D.  i8 

{name  of  the  collector  of  taxes)  then  collector  of  taxes  of  the  county  afore- 
said, by  virtue  of  a  precept  or  order  issued  out  of  the 

Court  of  the  county  aforesaid,  dated  the  day  of 

A.D.  i8  ,  and  directed  to  the  said 
as  aforesaid,  did  expose  at  public  sale,  at  the  Court-House,  in  the  county 
aforesaid,  in  conformity  with  all  the  requirements  of  the  statutes  in  such  case 
made  and  provided,  the  said  lot  ,  tract  ,or  parcel  of  land  above  described, 
for  the  satisfaction  of  the  judgment  so  rendered,  as  aforesaid.  And  whereas, 
at  the  time  and  place  aforesaid  {nufne  of  the  purchaser)  of  the  County  of 
and  State  of  having  offered  to  pay  the  afore- 

said sum,  amounting  to  the  sum  of  dollars  and 

cents,  for  the  {here  state  what  part  or  portion  of  the  land  was  sold)  of  said 
lot    ,  piece,     or  parcel      of  land,  as  follows,  to  wit,  the  sum  of 
dollars  cents,  which  was  the  least  quantity  of  said 

lot     ,  piece,     or  parcel      of  land  bid  for  the  said  lot     ,  tract     ,  or  parcel 
of  land  was  stricken  off  to  {fiame  of  the  purchaser)  at  that  price. 

And  whereas,  the  said  purchaser  has  now  made  and  delivered  to  me  an 
affidavit  of  having  complied  with  all  the  requirements  of  the  statute  and 
constitution  of  the  State  of  necessary  to  entitle 

said  purchaser  to  a  deed  for  the  premises  so  sold  to  him  as  aforesaid;  and 
whereas  the  said  {name  of  the  purchaser)  has  duly  assigned  the  cer- 

tificate (;f  purchase  of  the  land  above  described,  unto  {the  name  of  the 

grantee):     Now,  therefore,  1,  sheriff  of  the  county  of 

for  and  in  consideration  of  the  said  above-named  sum, 


5 1 8  DEEDS  CONVE  YING  LAND. 

amounting  to  the  sum  of  dollars  and  cents, 

paid  to  {the  collector  of  taxes)  of  said  county  of  by  the  said 

(the  navic  of  the  purchaser)  Tit  the  time  of  the  aforesaid  sale,  and  in 
consideration  of  {the  anwiiiit  of  costs  and  fees)  ^,,5  dollars  to  me  paid  by  said 
{?ia/ne  of  grantee)  and  by  virtue  of  the  statute  in  such  case  made  and 
provided,  have  granted,  bargained,  and  sold,  and  by  these  presents  do  grant, 
bargain,  and  sell  unto  the  said  {7ianie  of  the  grantee)  his  heirs  and 

assigns,  the  premises  so  sold  as  aforesaid,  situated  in  the  County  of 

and  State  of  to  wit  {here  describe  carefully 

the  land  or  premises  granted,  by  metes  and  bounds,  and  contents  or  quantity, 
or  botcndary  marks  or  ?nonicments). 

To  Have  and  to  Hold  unto  him,  the  said  {the  natne  of  the  grantee) 

his  heirs  and  assigns  forever,  subject,  however,  to  all  the  rights  of  redemp- 
tion provided  by  law. 

In  "Witness  Whereof,  I  sheriff  as  aforesaid,  by  vir- 

tue of  the  authority  aforesaid,  have  hereunto  subscribed  my  name  and  affixed 
my  seal  this  day  of  A.D.  18    . 

{Seal?^ 
Sheriff  of  County. 

State  of  ) 

County  of  ) 

I,  in  and  for  said  County  and  State,  do  certify  that 

sheriff  of  said  county,  who  is  personally  known  to 
me  to  be  the  real  person  who  executed  and  subscribed  his  name  to  the  fore- 
going deed,  appeared  before  me  this  day,  and  acknowledged  that  he  had 
executed  the  same  as  such  slieriff,  freely  and  voluntarily,  for  the  uses  and 
purposes  therein  set  forth. 

In  attestation  whereof,  I  have  hereunto  set  my  hand  and  attached  the  se»\^ 
of  our  said  court,  at  my  office  in  in  said  Count  y 

and  State,  this  day  of  A.D.  18 

{Sigttature.)     Clerk.     {Seal.) 

(155.) 
Deed  of  Executor,  in  use  in  the  Eastern  States. 
Know  all  Men  by  these  Presents,  That  whereas  {name  of 

the  executor)  in  the  County  of  and  State  of 

executor  of  the  last  will  of  {name  of  the  testator)  late  of 

deceased,  by  an  order  of  the  Court  of  Probate,  held  at 
within  and  for  the  County  of  on  the  day  of 

in  the  year  one  thousand  eight  hundred  and 
was  licensed  and  empowered  to  sell  and  pass  deeds  to  convey  certain  real 
estate  of  the  said  deceased  ;  and  whereas,  the  said  executor 

having  given  public  notice  of  the  intended  sale,  by  causing  notifications 


FORMS  OF  DEEDS. 


519 


thereof  to  be  published  once  a  week,  for  three  successive  weeks  prior  to  the 
time  of  sale,  in  tlie  newspaper  called  tlie  printed  at 

and  having  first  taken  the  oath  and  given  the  bond  by  law  in  such 
cases  required,  did  on  the  day  of  in  the  year 

one  thousand  eight  hundred  and  pursuant  to  the  order  and 

notice  aforesai:!,  sell  by  public  auction  the  real  estate  of  the  said  deceased 
hereinafter  described,  to  {nainc^  residence,  and  o.ciipation  of  the  purchaser) 
for  the  sum  of  dollars  ^50  he  being  the  highest  bidder 

therefor. 

Now,  therefore,  Know  ye,  That  I,  tlie  said  executcf 

as  aforesaid,  by  virtue  of  the  power  and  authority  in  me  vested  as  afore- 
said, and  in  consideration  of  the  aforesaid  sum  of  dollars  yji  3 
paid  by  the  said  {name  of  the  purchaser)  \\\&  receipt  whereof  is 
hereby  acknowledged,  do,  by  these  presents,  give,  grant,  sell,  and  convey 
unto  the  said  {Jicre  describe  carefully  the  land  or  premises  granted,  by  metes 
and  bounds,  and  contents  or  quantity,  or  boundary  marks  or  monutnents, 
and  refer  to  the  deed  of  the  land  to  the  testator,  tinder  which  he  held  it). 

To  Have  and  to  Hold  the  afore-granted  premises,  with  all  the  privileges 
and  appurtenances  to  the  same  belonging,  to  him  the  said  {name  of  pur- 

chaser) and  his  heirs  and  assigns,  to  his  and  their  use  and  behoof  forever. 
And  I  the  said  {natne  of  executor)  for  myself  and  my  heirs,  executors, 
and  administrators,  do  hereby  covenant  with  the  said  {nafne  of  purchaser) 
and  his  heirs  and  assigns,  that  in  pursuance  of  the  order  aforesaid,  I  gave 
public  notice  of  the  said  intended  sale,  in  manner  aforesaid,  and  that  I  took 
the  oath  and  gave  the  bond  by  law  required,  previous  to  fixing  on  the  tim(» 
and  place  of  sale. 

In  Witness  Whereof,  I,  the  said  executor  as  aforesaid, 

have  hereunto  set  my  hand  and  seal  this  day  of  in  thi» 

year  of  our  Lord  one  thousand  eight  hundred  and 

{Signature.)        {Seal.) 

Signed,  Sealed,  and  Delivered  in  presence  of 

ss.  A.D.  18  ,     Then  personally  appeared 

the  above-named  executor  and  acknowledged  the  foregoing  instru- 

ment to  be  his  free  act  and  deed. 

Before  me, 

Justice  of  the  Peace, 

(156.) 

Deed  of  Executor,  in  use  in  the  Middle  States. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  {name 

of  executor)   executor  of   the   last   will  of  {name   and  residence   of 

testator)   of    the   first   part,   and  {name,    residence,   and  occupation 

of  the  purchaser,  who  is  the  gra?itee)  of  the   second  part,  witnesseth,  that 


520 


DEEDS  CONVEYING  LAND. 


the  said  party  of  the  first  part,  by  virtue  of  the  power  and  authority  to  him 
given  in  and  by  the  said  last  will  and  testament,  and  for  and  in  consideration 
of  the  sum  of  lawful  money  of  the  United  States  of 

America,  to  him  in  hand  paid  at  or  before  the  enseahng  and  delivery  of 
these  presents,  by  the  said  party  of  the  second  part,  the  receipt  whereof  is 
hereby  acknowledged,  and  the  said  party  of  the  second  part,  his  heirs, 
executors,  and  administrators,  forever  released  and  discharged  from  the 
same  by  these  presents,  have  granted,  bargained,  sold,  aliened,  released, 
conveyed,  and  confirmed,  and  by  these  presents  do  grant,  bargain,  sell, 
aliene,  release,  convey,  and  confirm  unto  the  said  party  of  the  second  part, 
and  his  heirs  and  assigns  forever,  all  {here  describe  carefully  tJie  land  or 
premises  granted,  by  vl  tes  and  boicnds,  a7id  contents  or  quality,  or  boundary 
marks  or  monuments,  and  refer  to  the  deed  of  the  land  to  the  testator,  under 
which  he  held  it.) 

Together  with  all  and  singular  the  edifices,  buildings,  rights,  members, 
privileges,  advantages,  hereditaments,  and  appurtenances  to  the  same  belong- 
ing, or  in  anywise  appertaining,  and  the  reversion  and  reversions,  remainder 
iind  remainders,  rents,  issues,  and  profits  thereof.  And  also  all  the  estate, 
v'ight,  title,  interest,  claim,  and  demand  whatsoever,  both  in  law  and  equity, 
v/hich  the  said  testator  had  in  his  lifetime,  and  at  the  time  of  his  decease, 
and  which  the  said  party  of  the  first  part  hath,  by  virtue  of  the  said  last  will 
s.nd  testament,  or  otherwise,  of,  in,  and  to  the  same,  and  every  part  and 
parcel  thereof,  with  the  appurtenances :  To  have  and  to  hold  the  said 
premises  above  mentioned  and  described,  and  hereby  granted  and  conveyed, 
or  intended  so  to  be,  with  the  appurtenances,  unto  the  said  party  of  the 
second  part,  and  his  heirs  and  assigns,  to  his  and  their  only  proper  use, 
benefit,  and  behoof  forever.  And  the  said  party  of  the  first  part,  for  himself 
and  for  his  heirs,  executors,  and  administrators,  does  for  himself  and  for  his 
heirs,  executors,  and  administrators,  covenant,  grant,  promise,  and  agree  to 
and  with  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  that 
the  said  party  of  the  second  part,  his  heirs  and  assigns,  shall  and  lawfully 
may  from  time  to  time,  and  at  all  times  forever  hereafter,  peaceably  and 
quietly  have,  hold,  use,  occupy,  possess,  and  enjoy  all  and  singular  the  said 
hereditaments  and  premises  hereby  granted  and  conveyed,  or  intended  so  to 
be,  with  their  and  every  of  their  appurtenances,  and  receive  and  take 
the  rents,  issues,  and  profits  thereof,  to  and  for  his  and  their  own 
use  and  benefit,  without  any  lawful  let,  suit,  hindrance,  molestation, 
interruption,  or  denial  whatsoever,  of,  from,  or  by  them  the  said  party 
of  the  first  part,  his  heirs  or  assigns  ;  or  of,  from,  or  by  any  other 
person  or  persons  whomsoever  lawfully  claiming,  or  who  shall  or  may 
lawfully  claim  hereafter,  by,  from,  or  under  him,  or  by,  from,  or  under 
his  right,  title,  interest,  or  estate.  And  that  free  and  clear,  and 
freely  and  clearly  discharged,  acquitted,  and  exonerated,  or  otherw  se 
well  and  sufficiently  saved,  defended,  kept  harmless,  and  indemnified  by 
them,  the  said  party  of  the  first  part,  his  heirs  and  assigns,  of,  from,  and 


FORMS  OF  DEEDS. 


521 


agai  1st  all  and  all  manner  of  former  an  J  other  gifts,  grants,  bargains,  sales, 
mortgages,  judgments,  and  all  other  charges  and  incumbrances  whatsoever, 
had,  made,  committed,  executed,  or  done  by  him  the  said  party  of  the  first 
part,  or  by,  through,  or  with  his  acts,  deeds,  means,  consent,  procurement, 
or  privity. 

In  "Witness  "Whereof,  the  parties  to  these  presents  have  hereunto  inter- 
changeably set  their  hands  and  seals  the  day  and  year  first  above  written. 
(^Signature  of  party  of  the  first  part.)  {Seal.) 

{Signature  of  party  of  the  sec  and  part.)        {Seal.) 
Sealed  and  Delivered  in  the  Presence  of 

State  of  ,    ) 

)-  ss. 
County.     ) 

This  day  personally  appeared  before  the  undersigned,  {7iame  and  office  of 
ihe  magistrate)  within  and  for  the  county  and  State  aforesaid,  {name  of  the 
executor)  executor  of  the  estate  of  {na?ne  of  deceased)  deceased,  who  is  per- 
9  jnally  known  to  me  to  be  the  person  whose  name  as  such  is  subscribed  to 
tie  foregoing  deed,  as  having  executed  the  same,  and  acknowledged  that  he 
had  as  such  executor  subscribed  to  the  foregoing  deed,  as  having  executed 
the  same  and  acknowledged  that  he  had  as  such  executor  executed  the  same 
for  the  uses  and  purposes  therein  expressed. 

In  "Witness  "Whereof,   I  have  hereunto  set  my  hand  and  seal,  at 

lay  office  in  said  county,  this  day  of  A.D.  18 

{Signature.)    (Seal.) 

(158) 

Deed  of  .Administratcr  of  Intestate. 

This  Indenture,   Made  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

{name  and  residence  of  administrator)  administrator  of  the  goods  and 
estate  of  {name  of  intestate)  of  who    died   intestate, 

party  of  the  first  part,  and  {name,  residence,  and  occupation  of  the  grantee') 
of  the   County   of  and   State  of 

party  of  the  second  part : 

"Whereas,  at  the  term,  A.D.  18      of  the 

court,  within  and  for  the  County  of  and  State  of 

in  a  certain  petition  or  cause  therein  pending,  in  which  the  said  {name 
vf  the  grantor)  administrator  of  the  goods  and  estate  of  {name  of  the 
deceased)  deceased,  was  petitioner,  and  (names  of  the  defendants  -juho 
are  minor  children  of  the  deceased,  and  of  the  widow  of  deceased,  and  of  the 
guardian  of  the  minors)  were  defendants,  the  following  order  and  decree 
were  rendered,  that  is  to  say ; 


522  DEEDS  CONVEYING  LAND. 

State  of 


ss. 
County. 

In  Court  Term,  A. D.  i8 

{name  of  the  ad?ninistrator)  administrator  of  the  goods  and 
estate  of  {name  of  deceased)  deceased,  vs.  {names  of  ike  defendants,  who 
sJioiiUi  be  the  loidow  and  heirs  of  the  deceased.) 

And  now  comes  the  petitioner  by  his  solicitor  and  presents  his  petition 
herein,  and  it  satisfactorily  appearing  to  the  court  that  the  defendants  have 
been  duly  served  with  summons  herein  by  tlie  sheriff  of 
county,  and  that  the  defendants  are  non-residents  of  the  State  of 
and  have  been  duly  notified  of  this  proceeding  by  publication  as  required 
by  law,  it  is  therefore  ordered  by  the  court,  that  the  said  defendants  be 
called.  And  they,  being  three  times  solemnly  called,  came  not,  nor  any 
one  for  them,  but  herein  failed  and  made  default ;  which  it  ordered  to 
beentered  of  record  ;  and  it  further  appearing  to  the  court  that  the  said 
{names  of  defendants  who  a?-e  tninors)  are  minors,  and  have  a  guardian,  w 
wit,  the  said  {name  of  the  guardian).  And  afterwards  the  said  {name 
of  gjiardian)  as  such  guardian  comes  and  files  his  answer  herein,  neither 
admitting  nor  denying  the  allegations  in  said  petition  contained,  but  reserv- 
ing the  right  of  said  minor  by  requiring  proof.  And  this  cause  having 
been  brought  on  to  be  heard  upon  the  petition  herein  taken  as  confessed 
by  the  answer  of  said  guardian  and  the  exhibits  and  proofs, 

and  the  testimony  of  {name  of  the  witness  or  witnesses  called  in  the  case) 
witness  duly  sworn,  who  testified  herein  in  open  court,  and  it  satisfactorily 
appearing  to  the  court  from  the  evidence  that  the  said  {iiame  of  the  deceased) 
departed  this  life  on  or  about  the  day  of 

A.D.  1 8  ,  leaving  {naine  of  his  widow)  his  widow  and  {name  of  his 
children)  his  children  and  only  heirs  at  law ;  that  the  petitioner  herein 
was  duly  appointed  administrator  of  the  goods  and  estate  of  said  {nath^e 
of  deceased)  deceased,  and  that  letters  of  administration  were  duly  granted 
to   him   by  this    court,  bearing  date  on  the  day   of 

A.D,  i8  ,  and  the  court  having  ascertained  that  said 
petitioner  as  aforesaid  has  made  a  just  and  true  account  of  the  condition 
of  the  estate  of  said  deceased  to  this  court,  and  that  the  personal  estate 
of  said  deceased  is  not  sufficient  for  the  payment  of  the  debts  of  the  said 
{name  of  the  deceased)  deceased ;  and  the  court  having  found  the  amount  of 
the  deficiency  aforesaid  to  be  the  sum  of  dollars,  besides 

interest  and  costs,  and  it  further  appearing  to  the  court  that  the  said 
{name  of  the  deceased)  died  seized  of  the  following  described  real  estate, 
situate  in  the  County  of  and  State  of  ,  to 

wit :  {here  describe  carefully  the  land  or  premises  granted,  by  metes  and 
bounds,  and  contents  or  quantity,  or  boundary  marks  or  monuments,  and 
refer  to  the  deed  of  the  land  to  the  deceased,  under  which  he  held  it)  and  the 
court  having  ascertained  that  it  will  be  necessary  to  sell  the  said  real  estate 


FORMS  OF  DEEDS.  523 

to  pay  the  deficiency  aforesaid,  with  the  expenses  of  administration  now  due 
and  to  accrue ;  it  is  tlierefore  ordered,  adjudged,  and  decreed,  that  tlie  said 
petitioner  proceed,  according  to  law,  to  advertise  and  make  sale  of  the  real 
estate  above  described,  or  as  much  thereof  as  may  be  necessary  to  pay  the 
debts  now  due  from  said  estate,  and  the  costs  of  administration  now  due 
and  to  accrue.  And  it  is  ordered  and  decreed  by  the  court,  th^t  said  sale 
shall  be  made  on  the  following  terms,  viz,:  {Jure  set  forth  the  terms,  place, 
tifiie,  and  manner  of  the  sale  as  prescribed  in  the  decree)  which  terms  shall 
be  distinctly  set  forth  in  all  the  advertisements  of  said  sale. 

It  is  further  ordered  that  upon  such  a  sale  being  made,  that  said  {name 
of  said  administrator)  shall  make  and  execute  to  the  purchaser  or  pur- 
chasers of  said  real  estate,  good  and  sufficient  deed  or  deeds  to  convey  the 
interest  of  said  deceased  therein  at  the  time  of  his  decease,  and  that  said 
{name  of  the  administrator)  report  his  action  in  the  premises  with  all  con- 
venient speed.  And  it  is  further  ordered,  that  his  cause  stand  continued 
for  said  report. 

And  Whereas,  In  pursuance  of  said  order  and  decree,  the  said  party  of 
the  first  part  did,  on  the  day  of  A.D.  18     , 

between  the  hours  of  ten  o'clock  in  the  forenoon  and  five  o'clock  in  the 
afternoon  of  such  day,  at  {place  of  sale)  expose  to  sale  by  public  vendue, 
to  the  highest  bidder,  the  lands  and  real  estate  so  ordered  to  be  sold,  in  said 
decree,  having  first  given  notice  of  the  time,  terms,  and  place  of  such  sale, 
with  a  description  of  such  lands  and  real  estate,  according  to  the  terms  and 
requirements  of  said  order  and  decree,  and  of  the  statute  regulating  such 
sales,  as  will  more  fully  and  at  large  appear  by  the  report  of  sucli  sale,  madt; 
by  said  party  of  the  first  part,  as  administrator  as  aforesaid,  to  the  said 
court. 

And  Whereas,  At  such  sale,  the  said  party  of  the  second  part  became 
the  purchaser  of  the  following  described  lands  and  real  estate,  being  th«^ 
highest  bidder  therefor,  at  the  following  price :  that  is  to  say  {here  statr 
li/hat  part,  or  the  whole,  of  the  above-described  lands  were  sold,  and  at  what 
price). 

Now  Therefore,  This  indenture  witnesseth,  that  the  said  party  of  the  first 
part,  by  virtue  of  the  order  and  decree  aforesaid,  and  in  consideration  of  the 
premises,  and  for  the  further  consideration  of  the  sum  of  dollars, 

to  him  in  hand  paid  by  the  said  party  of  the  second  part,  the  receipt  of  which  is 
hereby  acknowledged,  has  granted,  bargained,  sold,  and  conveyed,  and  by 
these  presents  does  grant,  bargain,  sell,  and  convey  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  the  lands  and  real  estate  last  above 
described  as  having  been  sold  to  the  said  party  of  the  second  part,  to  have 
and  to  hold  the  same  with  all  the  appurtenances  thereunto  belonging,  or  in 
anywise  appertaining,  to  the  only  proper  use,  benefit,  and  behoof  of  the  said 
party  of  the  second  part,  and  his  heirs  and  assigns  forever.  And  the  said 
party  of  the  first  part,  for  the  consideration  aforesaid,  covenants  with  the  said 
party  of  the  second  part,  and  his  heirs  and  assigns,  that  he  has  in  all  respects 


524  DEEDS  CONVEYING  LAND. 

complied  with  the  order  and  decree  aforesaid,  and  witli  the  directions  of  the 

law  generally  in  sucii  case  made  and  provided. 

In  "Witness  Whereof,  1"he  said  party  of  the  first  part  as  administrator 

as  aforesaid,  has  hereunto  set  his  hand  and  seal  the  day  and  year  first  above 

written. 

{Sii^nahtre.)         {Seal.) 

Administrator  of  (jtaine  of  deceased)  as  aforesaid. 

In  Presence  of 

State  of  ^ 

>  ss. 
County.) 

This  day  personally  appeared  before  the  undersigned, 
within  and  for  the  county  and  State  aforesaid,  executor 

of  the  estate  of  {name  of  deceased)  deceased,  who  is  personally  known  to  me 
to  be  the  person  whose  name  as  such  is  subscribed  to  the  foregoing  deed, 
is  having  executed  the  same,  and  acknowledged  that  he  had  as  such  execu- 
tor subscribed  to  the  foregoing  deed,  as  having  executed  the  same,  and 
acknowledged  that  he  had  as  such  executor  executed  the  same  for  the  uses 
lad  purposes  therein  expressed. 

In  Witness  Whereof,   I  have  hereunto  set  my  hand  and  seal, 

it  my  ofiSce  in  said  county,  this  day  of  A.D.  i8 

{Sic[}iature.)    {Seal.) 
(160.) 

Deed  of  Referee  on  Foreclosure,  in  use  in  the  Middle 

States. 

This  Indenture,  Made  the  day  of  in  the  year 

t-ne  thousand  eight  hundred  and  between  {yiame  and  resi- 

dence of  the  referee  and  grantor),  3.  referee  duly  appointed  as  hereinafter 
mentioned,  of  the  first  part,  and  {name,  residence,  and  occupation  of  the 
grantee)  of  the  second  part. 

Whereas  at  a  Term  of  the         {)iame  of  the  court)  court,  on 

the  day  of  one  thousand  eight  hundred  and  it 

was  among  other  things  ordered  and  adjudged  by  the  said  court,  in  a  certain 
action  then  pending  in  the  said  court,  between  {names  of  plaintiff  and 
defendattt  in  the  action). 

That  all  and  singular  the  mortgaged  premises  mentioned  in  the  complaint 
in  said  action,  and  in  said  judgment  described,  or  so  much  thereof  as  might 
be  sufficient  to  raise  the  amount  due  to  the  plaintiff  for  principal,  interest, 
and  costs  in  said  action,  and  which  might  be  sold  separately,  without  mate- 
rial injury  to  the  parties  interested,  be  sold  at  public  auction,  according  to 
the  course  and  practice  of  said  court,  by  or  under  the  direction  of  the  said 


FORMS  OF  DEEDS. 


525 


party  of  the  first  part  as  referee  thereby,  duly  appointed  for  that  purpose  ; 
tliat  the  said  sale  be  made  (Jicre  state  the  directions  in  the  order  of 
court  as  to  the  place  and  time  of  the  sale)  that  the  said  referee  give  ]niblic 
notice  of  the  time  and  place  of  such  sale,  according  to  the  course  and 
practice  of  said  court,  and  that  any  of  the  parties  in  said  action  might 
become  a  purchaser  or  purchasers  on  such  sale  ;  that  the  said  referee  execute 
to  the  purchaser  or  purchasers  of  the  said  mortgaged  premises,  or  such 
part  or  parts  thereof  as  should  be  sold,  a  good  and  sufficient  deed  or  deeds 
of  conveyance  for  the  same. 

And  Whereas,  the  said  referee,  in  pursuance  of  the  said  judgment  of 
the  said  court,  did  on  the  day  of  one  thousand  eight 

hundred  and  sell  at  public  auction  at  {the  place  of  sale)  the 

premises  in  the  said  judgment  mentioned,  due  notice  of  the  time  and  place 
of  such  sale  being  first  given,  agreeably  to  the  said  judgment  ;  at  which  sale 
the  premises  hereinafter  described  were  struck  off  to  the  said  party  of  the 
second  part  for  the  sum  of  dollars,  that 

being  the  highest  sum  bidden  for  the  same.  Now  this  indenture  witnessethj 
that  the  said  referee,  the  party  of  the  first  part  to  these  presents,  in  ordei 
to  carry  into  effect  the  sale  so  made  by  him  as  aforesaid,  in  pursuance  ol 
the  judgment  of  said  court,  and  in  conformity  to  the  statute  in  such  case 
made  and  provided,  and  also  in  consideration  of  the  premises,  and  of  the 
said  sum  of  money  so  bidden  as  aforesaid,  being  first  duly  paid  by  the  said 
party  of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged,  hath 
bargained  and  sold,  and  by  these  presents  doth  grant  and  convey  unto  the 
said  party  of  the  second  part,  the  premises  aforesaid,  situate,  bounded,  and 
described  as  follows  {describe  here  the  premises  sold  as  directed  in  Form  107). 

To  Have  and  to  Hold  all  and  singular  the  premises  above  mentioned 
and  described,  and  hereby  conveyed,  or  intended  so  to  be,  unto  the  said  party 
of  the  second  part,  his  heirs  and  assigns,  to  and  for  his  and  their  only 
proper  use,  benefit,  and  behoof. 

In  Witness  V/hereof,  The  said  referee  as  aforesaid,  hath 

hereunto  set  his  hand  and  seal,  the  day  and  year  first  above  written. 

(Signature.)    {Seal.} 

Sealed  and  Delivered  in  the  Presence  of 


State  of 

ss. 
County. 


:l 


On  the  day  of  one  thousand  eiijht  hundred  and 

before  me  came  known  to  me  to  be  the  individual 

described  in,  and  who  executed  the  above  conveyance,  and  acknowledged 
that  he  executed  the  same. 

(Signature.) 


526  DEEDS  CONVEYING  LAND. 

(161.) 
Deed  of  Collector  of  Taxes. 

To  all  Persons  to  whom  these  Presents  shall  come,  I,  {name 

of  collector)  of  in  the  County  of  and  State  of 

collector  of  taxes  for  said  town  of  duly  chosen  and  qualified  at 

the  last  annual  meeting  of  the  inhabitants  of  said  town,  hel  1  on  the 
day  of  last  past  sends  greeting  : 

Whereas,  the  assessors  of  said  town  of  {iianie  of  the  towti)  in  their  list 
of  assessments  committed  to  me,  the  said  {name  of  the  collector)  to  collect, 
have  assessed  {name  of  the  party  for  whose  taxes  the  land  is  sold)  a 
resident  owner  of  a  certain  tract  of  land  situated  in  said 
bounded  and  described  as  follows,  viz.  {describe  the  premises  as  directed  in 
Form  107)  the  sum  of  {amount  of  tax)  and  ^^q  dollars,  as  a  tax  on  said 
premises  for  the  year  eighteen  hundred  and 

And  Whereas  I,  the  said  {name  of  collector)  have  demanded  payment  of 
said  tax  of  {ftame  of  party  taxed)  more  than  fourteen  days  before  proceeding 
to  advertise  and  sell  as  hereinafter  set  forth. 

And  Whereas,  the  said  {name  of  the  party  taxed)  has  given  no  written 
authority  to  any  inhabitant  of  said  town,  as  his  attorney  to  pay  the  tax  im- 
l)Osed  on  said  land,  and  no  mortgagee  of  said  land  has  given  written  notice 
to  the  clerk  of  said  town,  that  he  the  said  mortgagee  holds  a  mortgage 
thereon,  nor  given  written  authority  to  any  inhabitant  of  said  town  as  his 
attorney,  to  pay  said  tax. 

And  Whereas,  I,  the  said  having  given  public  notice  of  the 

time  and  place  of  sale  of  the  said  land,  for  the  non-payment  of  said  tax,  by 
an  advertisement  thereof  three  weeks  successively,  in  the  newspaper  called 
the  printed  and  published  in  in  said  county,  the 

last  publication  of  said  advertisement  being  one  week  before  the  time  of 
said  sale  :  also  by  posting  a  like  notice  on  said  land  three  weeks  before  the 
time  of  said  sale  ;  and  also  by  posting  a  like  notice  {he7-e  state  whatever 
other  places  the  notice  was  posted  at)  being  two  public  places  in  said  town, 
three  weeks  before  the  time  of  said  sale,  which  notices  severally  contained 
the  name  of  the  said  {name  of  the  party  taxed)  and  the  amount  of  the  tax 
assessed  on  said  land  ;  also  a  substantially  accurate  description  of  said  land, 
did,  on  the  day  of  instant,  pursuant  to  the  authority 

and  notice  aforesaid,  no  person  appearing  to  pay  said  tax,  and  it  being  the 
opinion  of  me,  that  the  said  land  could  not  be  conveniently  divided  and  a 
part  thereof  set  off  without  injury  to  the  residue,  and  judging  it  to  be  most 
for  the  public  interest  to  sell  the  whole  of  said  land,  sell,  at  public  auction, 
the  said  land  above  described,  to  {name  of  purchaser  and  grantee)  iax  the 
sum  of  and  y^^j  dollars,  he  being  the  highest  bidder  therefor. 

Now  Therefore  Know  Ye,  that  I,  the  said  {name  of  the  collector)  by 
virtue  of  the  authority  in  me  vested  as  aforesaid,  and  in  consideration  of 
the  aforesaid  sum  of  and  j^nj  dollars,  to  me  paid  by  the  said  {name 


FORMS  OF  DEEDS.  527 

0/  the  purchaser)  the  receipt  whereof  is  hereby  acknowledged,  do  hereby 
give,  grant,  bargain,  sell,  and  convey  unto  the  said  all  that  said 

tract  or  parcel  of  land  above  mentioned  and  described,  with  t'.ie  appurte- 
nances thereto  belonging. 

To  Have  and  to  Hold  the  same  to  him,  the  said  grantee,  his  heirs  and 
assigns,  to  his  and  their  use  and  behoof  forever;  subject,  nevertheless,  to 
the  right  of  redemption,  according  to  law. 

And  I,  the  said  grantor,  do  covenant  with  the  said  grantee,  his  heirs  and 
assigns,  that  in  making  the  said  sale  as  above  set  forth,  I  have  complied 
with,  observed,  and  obeyed  all  the  provisions  of  law  for  the  sale  of  real 
estate  for  the  non-payment  of  taxes. 

In  Witness  Whereof,  I,  the  said  collector,  have  hereto  set  my 

hand  and  seal,  this  day  of  in  the  year  eighteen  hundred 

and 


Executed  and  delivered  in  presence  of 
State  of 


{Signature)        {Seal.) 


SS. 
County.)  A.D.  18 

Then  personally  appeared  the  above-named  collector,  and 

acknowledged  the  above  instrument  to  be  his  free  act  and  deed. 

Before  me,  Justice  of  the  Peace. 

(162.) 

Deed  of  Assignee,  in  use  in  the  Western  States. 

This  Indenture,  Made  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  (A.D.  18       ) 

between  (««w^,  residence,  atid  occupation  of  the  assignee  who  is  the  grantor) 
as  assignee  of  {najne,  residence,  and  occupation  of  assignor)  of  the  one  part, 
and  {name,  residence,  and  occupation  of  the  purchaser  who  is  grantee)  of  the 
other  part: 

Whereas,  The  said  {name  of  the  assigftor)  being  lawfully  seized  in 
his  demesne,  as  of  fee,  among  other  things,  of  and  in  a  certain  lot,  piece,  or 
parcel  of  ground,  situate  in  the  County  of  and  State  of 

known  and  described  as  follows,  to  wit  {here  describe  the  premises  as  in 
Form  107).     And  being  so  thereof  seized,  did,  on  or  about  the 
day  of  A.D.  one  thousand  eight  hundred  and  (A.D.  18    ), 

enter  into  a  written  contract  with  the  said  party  of  the  second  part  for  the 
sale  of  the  above-described  premises  for  the  sum  of  dollars. 

And  Whereas,  The  said  {name  of  the  assignor)  did,  by  his  certain  deed 
of  assignment,  bearing  date  the  day  of 

A.D.  18  ,  grant,  bargain,  sell,  ahene,  remise,  release,  convey,  assign, 
transfer,  and  set  over  (with  other  property)  the  above-described  lot,  piece,  or 
parcel   of  ground    unto   the    said   party  of  the   first   part,   his   successors, 


528  DEEDS  CONVEYING  LAND. 

executors,  administrators,  and  assigns  forever,  in  trust  nevertheless,  to  and 
for  the  uses  and  intent  and  purposes  in  said  deed  of  assignment  mentioned 
and  set  forth,  reference  thereto  being  had  may  fully  and  at  large  appear ; 
which  said  deed  of  assignment  is  recorded  in  Book  page 

of  deeds,  in  the  office  of  (the  clerk  of  the  Circuit  Court  of  said 
county,  and  ex-ofi(icio  recorder  of  deeds). 

And  "Wliereas,  The  said  assignor  did  not  comply  with 

the  said  contract  before  the  execution  and  delivery  of  the  said  deed  of 
assignment  to  the  said  party  of  the  first  part. 

Now  this  Indenture  Witnesseth,  That  the  said  {name  of  the  assignee 
and  grantor)  assignee  of  said  {name  of  iJie  assignor)  for  and  in  con- 
sideration of  the  sum  of  dollars  (being  the  balance 
of  the  purchase  money  and  interest  due  on  said  contract),  unto  him  in  hand 
paid  by  the  said  party  of  the  second  part,  at  and  before  the  ensealing  and 
delivery  hereof,  the  receipt  whereof  is  hereby  acknowledged  by  these  pres- 
ents, does  grant,  bargain,  sell,  aliene,  release,  and  confirm  unto  the  said  party 
of  the  second  part,  and  his  heirs  and  assigns,  all  the  above  mentioned  and 
described  lot,  piece,  or  parcel  of  ground,  together  with  all  and  singular  the 
rights,  hereditaments,  and  appurtenances  thereunto  belonging  or  in  anywise 
appertaining,  and  all  the  estate,  right,  title,  interest,  property,  claim,  and 
demand  whatever,  that  he  the  said  assignor  had  and  held  at  and  immediately 
before  the  execution  and  delivery  of  the  said  deed  of  assignment  to  said 
party  of  the  first  part,  and  also  all  the  right,  title,  interest,  property,  claim, 
and  demand  whatever,  that  the  said  party  of  the  first  part  acquired  in,  under 
or  by  virtue  of  the  said  deed  of  assignment  by  said  assignor,  to  him,  the 
said  party  of  the  first  part.  To  have  and  to  hold  the  same,  together  with  all 
and  singular  the  appurtenances  and  privileges  thereunto  belonging,  or  in 
anywise  appertaining,  and  all  the  estate,  right,  title,  interest,  and  claim  what- 
soever, either  in  law  or  equity,  that  said  assignor  had  and  held  at  the  time  c( 
and  immediately  preceding  the  execution  and  delivery  of  said  deed  cf 
assignment  to  the  said  party  of  the  first  part,  and  all  the  right,  title,  interest, 
and  claim  whatsoever  of  the  said  party  of  the  first  part,  either  in  law  or 
equity,  to  the  only  proper  use,  benefit,  and  behoof  of  the  said  party  of  the 
second  part,  his  heirs  and  assigns  forever. 

In  Witness  "Whereof,  The  said  party  cf  the  first  part  has  hereunto  set 
his  hand  and  seal,  the  day  and  year  first  above  written. 

{Signature  of  Assignee)     {Seal) 


State  of 


>  ss. 


County. 

I,  a  in  and  for  said  county,  in  the 

State  aforesaid,  do  hereby  certify  that  who  is  personally 

known  to  me  as  the  real  person  whose  name  is  subscribed  to  the  within  deed, 
appeared  before  me  this  day,  in  person,  and  acknowledged  that  he  executed 


FORMS  OF  DEEDS.  529 

and  delivered  the  said  deed,  as  his  free  and  voluntary  act,  for  the  uses  and 
purposes  therein  set  forth. 

Given  under  my  hand  and  seal  this  day 

of  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

{Signature^    {Seal^ 
(163.) 

Acknowledgment  of  G-rantor  and  "Wife  identified,  before 
Commissioner  for  another  State. 

State  of  z  ") 

y  ss. 
County  of  ) 

Be  it  Heniembered,  That  on  the  day  of 

one  thousand  eight  hundred  and  before  me, 

commissioner  for  the  State  of  {name  of  the  State  of  which  he  is  coinmis^ 
sioner)  resident  in  the  of  ,  duly  appointed, 

commissioned,  and  sworn  to  take  acknowledgments  and  proof  of  deeds  and 
other  writings  in  the  State  of  ,  to  be  used  or  recorded  in 

the  said  State  of  {name  of  the  State  of  which  he  is  commissioner')  and 
to  administer  oaths  and  aftirmations,  and  to  take  depositions  in  said  State  ol 

,  to  be  used  within  th*^  said  State  of 
appeared  {name  of  grantor)  and  {natne  of  ivife  of  grantor)  his  wife,  who  a  2 
satisfactorily  proven  to  me  to  be  the  individuals  described  in,  and  who  exe- 
cuted the  within  deed,  from  said  {na7ne  of  grantor)  and  wife  to  {name  of 
grantee^  by  the  oath  of  {witnesses  to  their  idejitity)  who  being  by  me  duly 
cautioned  and  sworn,  deposed  that  he  knew  them,  the  individuals,  then 
present,  to  be  the  persons  described  in,  and  who  executed  the  within 
deed.     The  said  and  his  wife,  then 

and  there  acknowledged  to  rne  that  they  executed  the  said  deed  for  the 
purposes  therein  mentioned;  and  the  said  (name  of  the  wife)h&\ng  exam- 
ined by  me  privily,  and  apart  from  her  said  husband,  and  the  contents  and 
effect  of  the  said  deed  being  by  me  first  dul}-  explained  to  her,  did  then  and 
there  acknowledge  that  she  executed  the  same  for  the  purposes  therein 
mentioned,  freely  and  without  compulsion  of  or  from  her  said  husband. 

In  Witness  "Whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal 
of  mv  office,  on  the  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and 

{Signature.)     {Sea/.) 

Dominion  of  Canada. 

The  two  Canadas  were  separated  as  to  civil  rights  in  1791, 

ar-d  the  French  laws  were  allowed  to  remain  in  force  in  Lower 

Canada,  while  the  civil  laws  of  England  were  declared  to  be  in 

torce  in  Upper  Canada.     Now,  both  of  these  provinces,  and  with 

34 


530  DEEDS  CONIEYING  LAND. 

them  nearly  all  the  other  British  provinces  in  North  America, 
are  consolidated  into  the  Dominion  of  Canada.  But  the  same 
distinction  of  law  continues  to  a  considerable  extent.  In  the 
Province  of  Quebec,  formerly  Lower  Canada,  the  principles, 
forms,  and  usages  of  the  French  law  prevail  largely ;  while,  in 
the  other  provinces,  the  common  law  of  England  prevails,  as  in 
the  United  States  generally,  and  the  forms  and  usages  are  sub- 
stantially similar  in  all  of  them. 

We  give  selected  forms  of  deeds  of  grant  and  sale,  mort- 
gages, and  leases,  from  different  provinces,  which  we  believe 
will  suffice  for  practice  generally  throughout  the  Dominion. 
There  are  certain  provisions,  which,  though  not  universal,  are 
prevalent,  and  would  always  be  safe  and  prudent.  Deeds  con- 
veying land  are  now  almost  universally  registered,  and  there 
should  be  a  subscribing  witness,  who  declares  in  an  affidavit  his 
name,  residence,  and  occupation,  and  makes  oath  :  i.  To  the  exe- 
cution of  the  original,  and  of  the  duplicate,  if  there  be  one.  2.  To 
the  place  and  date  of  execution.  3.  That  he  knew  the  parties 
to  the  instrument,  or  one  or  more  of  them,  as  the  case  may  be. 
If  the  deed  be  made  in  Quebec,  it  should  be  executed  before  a 
judge,  or  prothonotary,  or  the  clerk  of  the  Circuit  Court,  or  a 
commissioner  empowered  to  take  affidavits,  or  a  notary  public. 

(164.) 

Deed  of  Land  in  use  in  the  Province  of  Ontario. 

This  Indenture,  Made  (/«  duplicate)  the  day  of 

one  thousand  eight  hundred  and  in  pursuance  of  the  Act 

respecting  short  forms  of  conveyances,  between  {here  i^isert  tJie  7iaiHe,  occu- 
pation, atici  residence  of  the  grantor  or  grantors)  of  the  first  part,  and  {here 
insert  the  name,  occupatio)i,  and  residence  of  the  grantee  or  grantees)  of  the 
second  part, 

Witnesseth,   That  in  consideration  of  {here  insert  the  price  paid)  of 
lawful  money  of  Canada,  now  paid  by  the  said  part     of  the  second  part  to 
the  said  part     of  the  first  part  (the  receipt  whereof  is  hereby  by 
acknowledged),   the  said   part     of   the  first  part  do     grant  unto  the  said 
part      of  part,  heirs  and  assigns  forever,  all  and  singular 

th  certain  parcel  or  tract  of  land  and  premises  situate,  lying  and  being 
[here  insert  a  description  of  the  premises  sold,  substantially  the  same  as  in 
Form  107). 

To  Have  and  to  Hold  unto  the  said  part     of  the  part, 


FORMS  OF  DEEDS. 


531 


heirs  and  assigns,  to  and  for  their  sole  and  only  use  forever : 

subject,  nevertheless,  to  the  reservations,  limitations,  provisos,  and  condi- 
tions expressed  in  the  original  grant  thereof  from  the  Crown.  And  the  said 
part     of  the  first  part  release  to  the  said  part     of  the  part  all 

claims  upon  the  said  lands. 

In  Witness  "Whereof,  The  said  parties  hereto  have  hereunto  set  their 
hands  and  seals. 

{Signatures^     {Seals.) 
Signed,  Sealed,  and  Delivered  in  the  Presence  of 

County  of  to  wit: 

I,  make  oath  and  say:   i.  That  I 

was  personally  present  and  did  see  the  within  instrument  and  duplicate 

duly  signed,  sealed,  and  executed  by 
the  part      thereto.     2.  That  the  said  instrument  and  duplicate  were  executed 
at  the  ,     3.  That  I, 

know  the  said  part  .  4.  That  I  am  a  subscribing  witness  to  the  said 
instrument  and  duplicate. 

Sworn  before  me  at  the  of  in  the  County  of 

this  day  of  in  the  year  of  our  Lord  18     . 

A  Commissioner  for  taking  affidavits  in  B.  R.,  S^c. 

(10/$.) 

Deed  of  Land  with  Mortgage  Back  to  secure  the  Price,  in 
use  in  the  Province  of  Quebec. 

On  This  Day,  the  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  before  the  undersigned  public 

notar  ,  duly  commissioned  and  sworn,  in  and  for  the  heretofore  Province 
of  Lower  Canada,  now  the  Province  of  Quebec,  in  the  Dominion  of  Canada, 
residing  in  the  city  of  Montreal,  in  the  said  Province,  personally  appeared 
{name,  residence,  and  occupation  of  the  grantor  or  grantors)  who  acknowl- 
edged and  confessed  to  have  bargained,  sold,  assigned,  transferred,  and 
made  over,  and  by  these  presents  do  bargain,  sell,  assign,  transfer,  and 
make  over,  from  henceforth  and  forever,  with  promise  of  warranty  against 
all  gifts,  dowers,  mortgages,  substitutions,  alienations,  and  other  hindrances 
whatsoever,  to  {name,  residence,  atid  occupation  of  the  grantee  or  grantees) 
part     to  these  presents,  and  accepting  thereof,  for  heirs  and  assigns, 

{the  description  of  the  premises  conveyed  sjibstantially  as  in  Form  107,)  with 
all  and  every  the  members  and  appurtenances  thereunto  belonging,  of  all 
which  the  said  purchaser  declare  to  have  a  perfect  knowledge,  as  having 
seen  and  viewed  the  same,  and  therewith  content  and  satisfied.  Which 
said  vendor  lawfully  seized  thereof,  by  virtue  of  a  good  and 

sufficient  title,  the  same  having  been  acquired  {here  gi^'e  a  brief  but  accurate 
accotmt  or  abstract  of  the  title).  The  aforesaid  hereby  bargained  and  sold 
lot     ,  piece     ,  or  parcel    of  land  and  premises. 


532  DEEDS  CONVEVIA'C  LAND. 

To  Have,  Hold,  Use,  and  Enjoy  the  aforesaid  bargained  and  sold 

and  premises,  with  their  rights,  members,  and  appur- 
tenances, unto  the  said  heirs  and  assigns,  as  their  own  proper  freehold 
forever,  by  virtue  of  these  presents,  to  enter  upon  and  take  possession  of  the 
aforesaid  and  premises  .  The  present 
baro-ain  and  sale  is  made  in  manner  as  aforesaid,  for  and  in  consideration  of 
the  sum  of 

And  for  Security  of  the  due  and  faithful  payment  of  the  said  balance  of 
consideration  money  and  interest,  the  hereby  bargained  and  sold  lot     of 

and  premises,  are,  by  these  presents,  specially,  and  by  privilege  oi 
bailletir  de  fonds,  mortgaged  and  hypothecated. 

And,  as  further  security,  the  said  purchaser  do  hereby  bind  and 
oblige  immediately  to  insure  and  to  keep  constantly  insured  at 

own  cost  and  expense  against  loss  by  fire,  with  such  insurance  com- 
pany or  companies  as  the  said  vendor  or  representatives  may  approve 
of,  for  a  sum  of  money  equal  to  the  amount  of  the  piesent  obligation,  the 
house  and  other  buildings  erected  on  the  above-described  piece  and  parcel 
of  land,  and  to  transfer  to  the  said  vendor  and  representatives  the  policy  oi 
policies  of  such  insurance  and  insurances,  together  with  the  sum  of  monej 
thereby  insured,  the  whole  as  long  as  any  part  or  portion  of  the  said  amount 
in  principal  or  interest  may  remain  unpaid.  Failing  which,  the  said  vendoi 
heirs  and  assigns,  shall  have  the  right  to  do  so,  and  the  said  pur 
chaser  heirs  and  representatives,  shall  be  bound  to  repay  on  demand 
to  the  said  vendor  heirs  and  assigns,  all  such  sum  and  sums  of  money 
which  he  or  they  may  have  expended  in  so  doing;  and  for  security  thereoi 
the  said  premises  are  hereby  further  hypothecated  to  the  extent  of 

And  in  consideration  of  the  premises,  the  said  vendor  do  hereby  trans- 
fer  and  set  over  to  the  said  purchaser  all  right  of  propert}-,  claim,  title, 
interest,  demand,  seizin,  possession,  and  other  rights  whatsoever,  which  the 
said  vendor  can  have,  demand,  or  pretend  in  or  upon  the  aforesaid  hereby 
bargained  and  sold  lot     ,  piece     ,  or  parcel     of  land  and  premises  of  which 

hereby  divest  in  favor  of  the  said  purchaser 

heirs  and  assigns  consenting  and  agreeing,  that  the  said  purchaser  be,  and 
remain  seized  and  invested  with  the  full  and  entire  possession  thereof,  and 
for  that  purpose,  do  hereby  constitute  the  bearer  of  these  presents  Attor- 
ney, to  whom  give  all  necessary  power  and  authority  to  that  effect, — 
For  thus,  &"€. 

And  at  the  making  and  passing  of  these  presents  also  personally  appeared 
and  intervened  Dame  wife  of  the  said 

by  her  said  husband  duly  and  specially  authorized  for  all  and  every  the 
effects  and  purposes  hereof;  who,  after  having  had  and  taken  communication 
of  the  foregoing  deed  of  sale,  declared  to  have  renounced,  as  by  these  pres- 
'-■nts,  she  doth,  as  well  in  her  own  name  and  behalf,  as  for  and  in  the  name 
nnd  on  behalf  of  her  child  or  children  born  or  to  be  born,  issue  of  her  mar- 
riage with  the  said  renounce  to  all  dower  and  all  right  and 
title  of  dower,  soit  coutumier  oji prefix  which  she,  the  said 


FORMS  OF  DEEDS.  533 

might  or  of  right  ought  to  have  or  claim  in  or  upon  the  above-described  and 
hereby  bargained  and  sold  lot,  piece,  or  parcel  of  land  and  premises,  of  which 
she  hereby  divests  herself  and  her  said  children,  declaring  the  said  property 
and  every  part  thereof,  hereby  freed,  cleared,  and  discharged  of  and  from  all 
her  said  rights  of  dower,  and  all  other  her  matrimonial  rights  and  claims, 
whether  legal,  stipulated,  or  customary. 

And  for  the  execution  of  these  presents,  and  of  every  the  premises,  the 
said  parties  have  elected  their  domicil  at  the  place  above  mentioned. 
Where.,  etc. — A'oiwithsta?idlng,  etc. — Promising,  etc. — Obligi/ig,  etc. — Re- 
nouncing, etc. 

Done    and    Passed    at    the   said   city  of    Montreal,    in    the   office   of 
the  said  Notary,  on  the  day,  month,  and  year  first  before  written, 
in  the  noon,  and  signed  by  the  said  with, 

and  in  the  presence  of  said  Notary,  also  hereunto  subscribing,  these  pres- 
ents having  been  first  duly  read  and  executed  under  the  number 

thousand  hundred  and 

« 

(1C6.) 

Deed  of  Land  with  Covenants  and  Release  of  Dower,  in 
use  in  the  Province  of  Ontario. 

This  Indenture,  Made  {iji  duplicate')  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  in 

pursuance  of  the  Act  respecting  short  forms  of  conveyances,  between  (here 
insert  the  name,  residence,  mid  occupation  of  the  grantor  or  grantors)  of 
the  fiist  part  (Jiere  insert  the  name  of  the  wife  of  the  grantor),  wi  of  the 
said  part  of  the  first  part ;  of  the  second  part :  and  {here  insert  the  name, 
residence,  and  occupation  of  the  grantee  or  grantees)  of  the  third  part. 

Witnesseth,  That  in  consideration  of  of  lawful  money  of 

Canada,  now  paid  by  the  said  part  of  the  third  part,  to  the  said  part  of  the 
first  part  (the  receipt  whereof  is  hereby  by  acknowledged),  he     the  said 

part     of  the  first  part,  do     grant  unto  the  said  part     of  the  third  part, 
heirs  and  assigns  forever,  all  and  singular  th      certain  parcel      or  tr?.ct     of 
land     and  premises  situate,  lying,  and  being  {here  insert  the  description  of 
the  premises  convey ed,  substantially  as  in  Form  107). 

To  Have  and  to  Eold  unto  the  said  part      of  the  third  part,  heirs 

and  assigns,  to  and  for  and  their  sole  and  only  use     forever  ;  subject, 

nevertheless,  to  the  reservations,  limitations,  provisos,  and  conditions  ex- 
pressed in  the  original  grant  thereof  from  the  Crown. 

The  said  part       of  the  first  part  covenant       with  the  said  part       of  the 
third  part  that  he     ha     the  right  to  convey  the  said  lands  to  the  said  part 
of  the  third  part,  notwithstanding  any  act  of  the  said  part         of  the  first 
part. 

And  that  the  said  part  of  the  third  part  shall  have  quiet  possession  of 
tlie  said  lands,  free  from  all  incumbrances. 


534  DEEDS  CONVEYING  LAND. 

And  the  said  part  of  the  finst  part  covenant  with  the  said  part  of  the 
third  part,  that  will  execute  such  further  assurances  of  the  said  lands  as 
may  be  requisite. 

And  the  said  part  of  the  first  part  covenant  with  the  said  part  of  the 
third  part,  that     he     ha     done  no  act  to  encumber  the  said  lands. 

And  the  said  part  of  the  first  part  release  to  the  said  part  of  the  third 
part  all  claims  upon  the  said  lands. 

And  the  said  part  of  the  second  part,  wi  of  the  said  part  of  the  first 
part,  hereby  bar  dower  in  the  said  lands. 

In  Witness  Whereof,  The  said  parties  hereto  have  hereunto  set  their 
hands  and  seals. 

Signed,  Sealed,  and  Delive?-ed  in  tJie  Presence  of 

Received,  on  the  day  of  the  date  of  this  Indenture,  from  the  said  part 
of  tlie  third  part,  the  sum  of  being  the  full  consid- 

eration therein  mentioned. 

(IVitness)  , 

County  of  to  wit : 

I,  of  the  in  the  County  of  make 

oath  and  say:  i.  That  I  was  personally  present  and  did  see  the  within  in- 
strument and  duplicate  thereof  duly  signed,  sealed,  and  executed  by 

the  part     thereto.     2.  That  the  said  instrument  and  duplicate 
were  executed  at  the  3.  That  I,  know  the  said 

part  .  4,  That  I  am  a  subscribing  witness  to  the  said  instrument  and 
duplicate. 

Sworn  before  me  at  in  the  County  of 

this  day  of  in  the  year  of  our  Lord  18 

A  Commissioner  for  taking  Affidavits  in  B.  R.,  etc. 

(167.) 
Deed  of  Grant  and  Quitclaim,  for  General  Use. 
This  Indenture,  Made  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

{name,  residettce,  and  occupatioti  of  the  grantor)  of  the  one  part,  and 
{name,  residence,  and  occ7ipation  of  the  grantee)  of  the  other  part,  witnesseth 
that  for  and  in  consideration  of  the  sum  of  of  lawful  money  of 

to  the  said  in  hand  well  and  truly 

paid  by  the  said  at  or  immediately  before  the  sealing 

and  delivery  of  these  presents  (the  receipt  whereof  the  said 

do      hereby  acknowledge,  and  of  and  from  the  same,  and  every 
part  thereof,  do     acquit,  release,  and  discharge  the  said 
heirs,  executors,  administrators,  and  assigns  forever  by  these  presents) 

the  said  hath  granted,  released,  and  confirmed, 

and  by  these  presents  doth  grant,  release,  and  confirm  to  the  said  party  of 
the  first  part.     {Here  describe  carefully  the  premises  conveyed). 


FORMS  OF  DEEDS.  ^35 

Together  with  all  and  every  the  rights,  privileges,  easements,  advant- 
ages, and  appurtenances  whatsoever,  to  the  said  hereditaments  belonging, 
<  r  in  anywise  appertaining,  or  thereunto  now  or  heretofore  holden,  u~e(l. 
occupied,  or  enjoyed. 

To  Have  and  to  Hold  the  said  messuages  and  tenements,  land  and 
hereditaments,  and  all  and  singular  other  the  premises  hereinbefore  granted, 
appointed,  and  released,  or  expressed  and  intended  so  to  be,  with  their  ap- 
purtenances, unto  and  tot.ie  use  of  the  said  heirs  and 
assigns  forever.  Subject,  nevertheless,  to  the  quit-rents  to  become  due, 
exceptions,  reservations,  covenants,  and  conditions 'in  the  original  grants  or 
letters-patent  of  the  said  premises  reserved  and  contained. 

And  the  said  do  hereby  for  heirs,  executors,  and 

administrators,  covenant,  promise,  and  agree  with  and  to  the  said 

heirs  and  assigns,  in  manner  and  form  following  ;  that  is  to  say,  that 
it  shall  and  may  be  lawful  to  and  for  the  said  heirs  and 

assigns,  from  time  to  time,  and  at  all  times  hereafter,  peaceably  and  quietly 
to  enter  into  and  upon,  and  to  have,  hold,  occupy,  possess,  and  enjoy  the 
said  messuages,  lands,  and  other  heraditaments  hereinbefore  granted  and 
released,  or  expressed  and  intenled  so  to  be,  with  their  appurtenances,  and 
to  receive  and  take  the  rents,  issues,  and  profits  thereof,  and  of  every  part 
thereof,  to  and  for  his  and  their  proper  use  and  benefit,  without  the  lawful 
let,  suit,  trouble,  denial,  eviction,  interruption,  claim,  or  demand  whatsoever, 
of  or  by  the  said  heirs  or  assigns,  or  of  or  by  any 

other  person,  lawfully  or  equitably  claiming  or  to  claim,  by,  from,  or  under, 
or  in  trust  for  him,  them,  or  any  of  them. 

In  Witness  Whereof,  I,  the  said  {name  of  the  grantor),  have  hereunto 
subscribed  my  name  and  affixed  my  seal,  at  on  the  day 

of  in  the  year  of  our  Lord 

{Name  of  Grantor^     {Seal.) 
Executed  and  Delivered  in  Presence  of 
{Names  of  witnesses.) 
$ 

Received,  on  the  day  of  the  date  of  the  within  written  Indenture,  of  ar.d 
from  within  named,  the  sum  of  of  lawful 

current  money  of  being  the  full  consideration  money  within  men- 

tioned, to  be  paid  by  to 

Witness. 

This  Deed  was  acknowledged  before  me  by  therein 

named  apart  from  her  husband,  to  have  been  voluntarily  executed  by  her, 
and  that  she  was  aware  of  the  nature  of  the  contents  thereof. 

Dated  this  day  of  A.D.  18 

y.  p.  for  Con  fit}'. 


536  DEEDS  CONVEYING  LAND. 

(168.) 

Deed  of  Grant  of  Sale  of  Land,  in  use  in  Prince  Edward 

Island. 

This  Indenture,  Made  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between  {name, 

residence,  and  occitpation  of  the  grrntor)  of  the  one  part,  and  {name,  resi- 
dence, and  occnpatim  of  the  grantee)  of  the  other  part, 

Witnesseth,  That  for  and  in  consideration  of  the  sum  of 
of  lawful  money  of  Prince  Edward  Island,  to  the  said  in  hand 

well  and  truly  paid  by  the  said  at  or  immediately 

before  the  sealing  and  dehvery  of  these  presents  (the  receipt  whereof    he 
the  said  doth  hereby  acknowledge,  and  of  and  from  the  same, 

and  every  part  thereof,  doth  acquit,  release,  and  discliarge  the  said 

heirs,  executors,  administrators,  and  assigns,  and  every  of  them, 
forever,  by  these  presents)     he     the  said  hath  granted, 

bargained,  sold,  aUened,  released,  and  confirmed,  and  by  these  presents, 

doth  grant,  bargain,  sell,  aliene,  release,  and  confirm 
(and  the  said  {name  of  the  wife  of  the  grantor)  doth  hereby  release  all 
her  right  of  dower)  unto  the  said  heirs  and  assigns,  all 

that  tract,  piece,  or  parcel  of  land,  situate,  lying,  and  being  {describe  careftclly 
the  premises  sold  and  conveyed). 

Together  with  all  woods,  underwoods,  ways,  waters,  watercourses, 
houses,  outhouses,  yards,  builiings,  stables,  gardens,  fences,  profits,  com- 
modities, privileges,  easements,  and  advantages  whatsoever,  to  the  said  lands, 
hereditaments,  and  premises  belonging,  or  in  an\w'se  appertaining,  or  there- 
with usually  held,  used,  occupied,  possessed,  enjoyed,  reputed,  taken,  or 
known  as  part,  parcel,  or  member  thereof,  or  of  any  part  thereof  ;  and  the 
reversion  and  reversions,  remainder  and  remainders,  rents,  issues,  and  prof- 
its thereof,  and  of  every  part  thereof  ;  and  all  the  estate,  right,  title,  trust, 
interest,  property,  claim,  and  demand  whatsoever,  both  at  law  and  in  equity, 
of  the  said  of,  in,  to,  or  out  of  the  said  lands, 

hereditaments,  and  premises,  or  any  part  thereof  : 

To   Hava  and  to  Hold   the  said   lands,  hereditaments,  and  premises 
hereby  granted  and  released,  or  ir^ended  so  to  be,  with  their  and  every  of 
their  rights,  members,  and  appurtenances,  unto  the  said 
heirs  and  assigns,  to  the  use  of  the  said  heirs  and  assigns 

forever  ;  subject,  nevertheless,  to  all  taxes,  assessments,  and  other  public 
burdens  now  imposed  or  hereafter  to  be  imposed  on  the  said  premises  men- 
tioned to  be  hereby  granted,  or  any  part  or  parcel  thereof.  And  the  said 
heirs,  executors,  and  administrators,  covenant, 
promise,   and  agree  to  and  with   the  said  heirs  and 

;.ssigns,  by  these  presents,  in  manner  following;  that  is  to  say,  that  the 

Slid  at  the  time  of  the  seahng  and  delivery  of  these  presents,  lawfully, 

rightfully,  and  absolutely  seized  of  and  in,  or  well  and  sufficiently  entitled  unto. 


FORMS  OF  DEEDS.  537 

the  said  land,  hereditaments,  and  premises  hereby  granted  and  released,  or 
intended  so  to  be,  with  the  appurtenances  to  the  same  belonging,  of  or  for 
a  good,  sure,  perfect,  lawful,  absolute,  and  indefeasible  estate  of  inheritance 
in  fee-simple-  in  possession,  without  any  manner  of  condition,  use,  trust, 
power  of  revocation,  limitation  of  use  or  uses,  or  any  other  restraint,  cause, 
matter,  or  thing  whatsoever,  to  alter,  change,  charge,  abridge,  defeat,  encum- 
ber, revoke,  or  make  void  the  same  :  and  that  he  the  said 
how   ha     in  good   right,   full   power,    and   lawful    and    absolute 

authority  to  grant,  release,  and  convey  all  and  singular  the  said  lands, 
hereditaments,  and  premises,  with  tlie  appurtenances,  to  the  use  of  the  said 
heirs  and  assigns,  in  manner  aforesaid,  according  to 
the  true  intent  and  meaning  of  these  presents  :  and  also,  that  the  said  lands, 
hereditaments,  and  premises  hereby  granted  and  released,  or  intended  so  to 
be,  and  every  of  them,  and  every  part  thereof,  with  the  appurtenances  to  the 
same  belonging,  shall  and  lawfully  may  from  time  to  time,  and  at  al!  times 
hereafter,  remain,  continue,  and  be  to  the  use  of  the  said 
heirs  and  assigns,  and  shall  and  may  accordingly  be  peaceably  and  quietly 
held  and  enjoyed  by  the  said  heirs  and  assigns,  without  any 

lawful  let,  suit,  trouble,  molestation,  or  interruption  whatsoever,  of,  from,  or 
by  the  said  heirs  or  assigns,  or  any  other  persons  whomso- 

ever lawfully  or  equitably  claiming,  or  to  claim,  by,  from,  or  under,  or  in  trust 
f(^r  him  or  them,  or  any  of  their  ancestors  ;  and  that  freely,  clearly,  and 
aLsolutely  saved,  defended,  kept  harmless,  and  indemnified  by  the  said 
heirs,  executors,  or  administrators,  of,  from,  and  against 
all  former  and  other  estates,  rights,  titles,  liens,  charges,  and  encumbrances 
whatsoever,  had,  made,  done,  committed,  executed,  or  suffered  by 
the  said  or  any  of   their  ancestors,  or   any  other   person 

or  persons  whomsoever  lawfully  or  equitably  claiming,  or  to  claim  by,  from, 
or  under,  or  in  trust  for  him,  them,  or  any  of  them,  or  by  or  through 
his,  their,  or  any  of  their  wilful  means  or  default,  consent,  privity,  or 
procurement ;    and,   further,   that  the  said  heirs, 

and  all  and  every  other  person  or  persons  whomsoever  having  or  lawfully 
claiming,  or  who  shall  or  may  have  or  lawfully  claim,  any  estate,  right,  title, 
trust,  or  interest  whatsoever,  at  law  or  in  equity,  of,  in,  to,  or  out  of  the 
said  lands,  hereditaments,  and  premises  hereby  granted  and  released,  or 
intended  so  to  be,  or  any  of  them,  or  any  part  thereof,  by,  from,  or  under, 
or  in  trust  for  or   any  of  ancestors,  shall    and  will 

from  time  to  time,  and  at  all  times  hereafter,  upon  the  request  and  the 
cost  and  charges  of  the  said  heirs  or  assigns,  make,  do, 

perform,  acknowledge,  suffer,  and  execute,  or  cause  and  procure  to  be  made, 
done,  performed,  acknowledged,  suffered,  and  executed,  all  and  every  such 
further  and  other  lawful  and  reasonable  act  and  acts,  thing  and  things,  devises, 
conveyances,  and  assurances  in  the  law  whatsoever,  for  the  further,  better, 
more  perfect,  and  absolute  settling,  conve_ving,  and  assuring  of  all  and  singu- 
lar the  said  lands,  hereditaments,  and  premises  hereby  granted  and  released, 


538  DEEDS  CONVEYING  LAND. 

witli  their  appurtenances,  to  the  use  of  the  said  heirs  and 

assigns,  as  by  the  said  heirs  or  assigns,  or  his,  their,  or 

any  of  their  counsel  learned  in  the  law,  shall  be  reasonably  devised,  advised, 

or  required. 

And  the  parties  aforesaid  have  hereunto  set  their  hands  and  seals,  at 

on  the  day  of  in  the  year  of 

our  Lord 

{Name  of  grantor.)     {Seal.) 

{Name  of  grantee.)     {Seal.) 

Executed  and  Delivered  in  Presence  of 

{Name  of  witnesses.) 

$ 

Received,  on  the  day  of  the  date  of  the  within  written  Indenture,  of  and 
from  within  named,  the  sum  of  of  law- 

ful current  money  of  being  the  full  consideration  money  wilhin 

mentioned  to  be  paid  by  to 

Witness. 

This  Deed  was  acknowledged  before  me  by  therein  named 

apart  from  her  husband,  to  have  been  voluntarily  executed  by  her,  and  that 
she  was  aware  of  the  nature  of  the  contents  thereof. 
Dated  this  day  of  A.D.  i8 

y,  p.  for  Cou7ity. 

ABSTRACT  OF  THE  LAWS  OF  ALL  THE  STATES 

AND  TERRITORIES  RELATING  TO  DEEDS 

AND  THEIR  REQUIREMENTS. 

ALABAMA. — Every  deed  must  be  in  writing  or  printed,  and  on  parchment 
or  paper,  signed  at  the  foot  and  attested  by  a  witness  or  else  acknowledged,  and  re- 
corded ;  and  if  they  purport  on  their  face  to  be  sealed  instruments,  they  have  such 
force. 

ARIZONA. — Deed  must  be  in  writing  signed  by  the  grantor  in  the  presence 
of  two  subscribing  witnesses,  or  acknowledged,  and  recorded.  No  provision  as  to 
seal. 

ARKANSAS. — Deeds  are  construed  to  pass  the  whole  estate  of  the  grantor 
in  the  property  conveyed,  unless  specially  limited.  They  must  be  executed  in  the 
presence  of  two  witnesses,  or  acknowledged  before  two  witnesses,  who  subscribe 
their  names  as  such,  and  acknowledged  before  the  proper  officer,  and  must  be  record- 
ed, to  be  effectual  against  third  parties. 

CALIFORNIA. — Deeds  are  known  under  the  Code  as  "grants."  They  pass 
the  whole  title  and  one  in  fee-simple,  unless  an  express  reservation  is  made,  and 
must  be  acknowledged  or  proved,  and  recorded  in  the  office  of  the  recorder  for  the 


ABSTRACT  OF  DEEDS. 


539 


county  where  the  land  is  situated.     There  is  no  distinction  between  sealed  and  un- 
sealed instruments.     Witnesses  are  not  required. 

COLORADO. — The  whole  estate  conveyed  passes,  unless  there  is  an  express 

limitation.     The  deed  must  be  acknowledged,   and  recorded  in  the  county  where 
the  land  is  situated.     No  witnesses  are  required,  and  a  scroll  answers  for  a  seal. 

CONNECTICUT. — The  deed  must  be  in  writing,  signed,  sealed,  and  acknowl- 
edged by  the  grantor,  attested  by  two  witnesses,  and  it  must  be  recorded  in  the 
clerk's  office  of  the  town  where  the  lands  lie.     A  scroll  answers  for  a  seal. 

DELAWARE. — A  deed,  in  order  to  be  recorded,  must  be  acknowledged,  and 
it  must  be  recorded  in  the  office  for  the  county  where  the  land  lies  within  three 
months.     Only  one  witness  is  necessary,  and  a  scroll  answers  for  a  seal. 

DISTRICT  OF  COLUMBIA.— Deeds  are  usually  witnessed,  although  not 
required  by  statute  to  be  so.  They  must  be  acknowledged  and  recorded.  If  re- 
corded within  six  months,  they  are  notice  from  the  day  of  execution,  otherwise  from 
the  day  of  record.     A  scroll  answers  for  a  seal. 

FLORIDA. — Deeds  must  be  in  writing,  sealed  and  delivered  in  presence  of  at 
least  two  witnesses  ;  must  be  acknowledged  before  a  proper  officer,  and  recorded  in 
the  county  where  the  land  is  situated,  within  six  months  after  the  execution  of  the 
same.     A  scroll  answers  for  a  seal. 

GEORGIA. — A  deed  must  be  in  writing,  signed  and  sealed  by  the  grantor,  at- 
tested by  at  least  two  witnesses,  acknowledged  before  the  proper  officer,  and  record- 
ed in  the  clerk's  office  of  the  Superior  Court  for  the  county  where  the  land  lies. 
Mortgages  must  be  recorded  within  thirty  days  after  date.  A  scroll  answers  for  a 
seal. 

IDAHO. — Deeds  are  construed  to  pass  all  the  estate  of  the  grantor,  without 
using  the  word  "  heirs,"  unless  a  different  intention  is  expressed.  They  must  be  in 
writing,  attested  by  a  witness,  acknowledged  and  recorded.  A  scroll  answers  for  a 
seal. 

ILLINOIS. — Deeds  convey  the  whole  interest,  unless  there  be  a  limitation  ; 
must  be  acknowledged  and  recorded  in  the  county  where  the  land  is  situated.  No 
witnesses  are  required,  and  a  scroll  answers  for  a  seal. 

INDIANA. — The  word  "heirs"  is  not  necessary  in  deeds,  and  seals  and 
scrolls  are  abolished.  The  deed  must  be  in  writing,  signed  and  acknowledged,  and 
recorded  in  the  county  where  the  lands  are,  within  forty-five  days  after  date.  Wit- 
nesses are  not  necessary. 

IOWA. — Every  deed  passes  the  grantor's  whole  interest,  unless  a  contrary  in- 
tent appears.  Seals  are  not  neccessary,  neither  are  witnesses.  Deeds  must  be  ac- 
knowledged before  a  judge  or  clerk  of  a  court  having  a  seal,  a  notary  public,  county 
auditor,  or  justice  of  the  peace,  and  recorded  in  the  county  where  the  lands  lie. 


540  ABSTRACT  OF  DEEDS. 

KANSAS. — Deeds  must  be  in  writing,  subscribed  by  the  grantor,  or  his 
agent  or  attorney,  acknowledged  and  recorded  in  the  county  where  the  land  is. 
Private  seals,  except  of  corporations,  are  abolished.     Witnesses  are  not  required. 

KENTUCKY. — The  deed  must  be  in  writing,  acknowledged,  and  recorded 
in  the  office  of  the  clerk  of  the  court  for  the  county  where  the  land  is.  Deeds  made 
by  residents  of  the  State  must  be  recorded  in  sixty  days  ;  those  made  by  non-resi- 
dents, in  the  United  States  within  four  months,  out  of  the  United  States  twelve 
months.     Seals  are  abolished. 

LOUISIANA. — Deeds  should  be  acknowledged  and  attested  by  the  person 
taking  the  acknowledgment  and  two  male  witnesses,  and  should  be  recorded  in  the 
parish  where  the  property  is.     No  seal  or  scroll  is  necessary. 

MAINE. — Deeds  must  be  in  writing,  signed  and  sealed,  acknowledged  by  the 
grantor,  or  if  there  be  more  than  one  grantor  then  by  one  of  them,  and  recorded  in 
the  county  where  the  land  is.     No  witnesses  are  required. 

MARYLAND. — All  deeds  must  be  signed  and  sealed.  They  require  at  Idkst 
one  witness,  and  must  be  acknowledged  and  recorded  within  six  months  in  the 
county  where  the  lands  lie.     A  scroll  answers  for  a  seal. 

MASSACHUSETTS. — Conveyances  are  made  in  writing,  signed  and  sealed 
by  the  grantor  or  his  attorney  and  acknowledged  by  the  grantor,  or  if  there  be  more 
than  one  grantor  then  by  one  of  them  and  recorded  in  the  county  where  the  lands 
lie.     No  witnesses  are  necessary.     A  scroll  is  not  sufficient. 

MICHIGAN. — Deeds  must  be  signed  and  sealed,  and  witnessed  by  at  least 
two  persons,  and  acknowledged  and  recorded  in  the  county  where  the  property  is. 
A  scroll  ansvv'ers  for  a  seal. 

MINNESOTA. — Two  witnesses  are  necessary  to  every  deed.  It  must  be  ac- 
knowledged and  recorded  in  the  county  where  the  land  is.  A  scroll  answers  for  a 
seal. 

MISSISSIPPI. — Deeds  must  be  acknowledged,  or  proved  by  one  or  more  of 
the  subscribing  witnesses,  and  recorded  in  the  office  of  the  clerk  of  the  Chancery 
Court  for  the  county  where  the  lands  are.  If  the  deed  is  not  acknowledged,  two  wit- 
nesses are  necessary.  A  seal  is  not  required.  Actual  possession  and  occupancy  by  the 
grantee  of  property  conveyed  is  equivalent  to  record. 

MISSOURI.— Witnesses  are  not  necessary.  The  deed  should  be  signed  and 
sealed,  acknowledged,  and  recorded  in  the  county  where  the  land  is.  A  scroll  is 
equivalent  to  a  seal. 

MONTANA. — Deeds  must  be  in  writing,  signed  by  the  grantor,  and  acknowl- 
edged or  proved  by  subscribing  witness,  and  recorded.     Private  seals  are  abolished. 

NEBRASKA. — The  deed  must  be  signed  in  the  presence  of  at  least  one  wit- 
ness, who  must  also  subscribe  as  such,  and  acknowledged  or  proved,  and  recorded 
in  the  county  where  the  land  is.     Seals  are  abolished. 

NEVADA. — Deeds  must  be  signed,  acknowledged,  and  recorded  in  the  county 
where  the  land  is.     Witnesses  are  unnecessary,  and  a  scroll  answers  for  a  seal. 


ABSTRACT  OF  DEEDS.  54 1 

NEW  HAMPSHIRE. — Deeds  must  be  signed  and  sealed,  attested  by  two  or 
more  witnesses,  and  recorded  in  the  county  where  the  land  is.  A  scroll  is  not  suf- 
ficient. 

NEW  JERSEY. — Deeds  must  be  signed,  sealed,  acknowledged,  and  record- 
ed in  tlie  county  where  the  land  is.  A  scroll  is  sufficient  and  witnesses  are  not  nec- 
cessary,  though  usually  taken. 

NEW  MEXICO. — Deeds  must  be  signed  by  the  grantor,  sealed,  acknowl- 
edged, and  recorded.     A  scroll  answers  for  a  seal. 

NEW  YORK. — Ever)' deed  must  be  subscribed  and  sealed  —  and  a  scroll  is 
not  sufficient — and  if  not  duly  acknowledged  previous  to  its  delivery,  must  be  attest- 
ed by  at  least  one  witness.  It  must  be  acknowledged  before  the  proper  officer,  and 
recorded  in  the  county  where  the  land  is. 

NORTH  CAROLINA. — A  scroll  answers  for  a  seal.  Deeds  must  be  ac- 
knowledged or  proved  by  one  or  more  witnesses,  and  recorded  in  the  county  where 
the  land  is. 

NORTH  DAEOTA. — Deeds  must  be  signed  by  the  grantor,  acknowledged 
and  recorded.     Witnesses  and  seals  are  unnecessary'. 

OHIO. — Deeds  must  be  in  writing,  signed,  acknowledged  in  the  presence  of 
two  attesting  witnesses  before  the  proper  officer,  and  recorded  in  the  county  where 
the  land  is.     No  seal  is  necessar}'. 

OKLAHOMA  TERRITORY.— Deeds  must  be  signed  by  the  grantors  in  the 
presence  of  at  least  one  witness,  acknowledged  and  recorded. 

OREGON. — Deeds  must  be  signed  and  sealed  (a  scroll  is  sufficient),  acknowl- 
edged, and  recorded  in  the  county  where  the  land  is.     Two  witnesses  are  necessary. 

PENNSYLVANIA. — The  deed  must  be  sealed,  acknowledged,  and  recorded 
in  the  county  where  the  property  is.  One  or  more  witnesses  are  usually  taken,  but 
are  not  required.     A  scroll  answers  for  a  seal. 

RHODE  ISLAND. — A  scroll  is  insufficient ;  the  seal  must  be  affixed.  The 
deed  must  be  in  writing,  signed,  sealed,  and  delivered,  acknowledged  before  the 
proper  officer  and  recorded  in  the  office  of  the  clerk  or  recorder  of  deeds  of  the  town 
or  city  where  the  property  is.     Witnesses  are  not  essential. 

SOUTH  CAROLINA. — The  deed  must  be  in  writing,  signed,  sealed,  and 
acknowledged,  and  recorded  in  the  county  where  the  land  is.  Two  witnesses  are 
necessary.  If  recorded  within  forty  days  from  date,  it  is  notice  from  its  date,  other- 
wise only  from  the  date  of  record. 

SOUTH  DAKOTA. — Deeds  must  be  signed  by  the  grantor,  acknowledged 
and  recorded.     Witnesses  and  seals  are  unnecessary. 

TENNESSEE. — Deeds  must  be  acknowledged  by  the  grantor,  or  proved  by 
two  witnesses,  and  registered  in  the  county  where  the  land  lies.     Seals  are  abolished. 


542  ABSTRACT  OF  DEEDS. 

TEXAS. — The  deed  must  be  signed  and  acknowledged,  or  proved  by  two  wit- 
nesses, and  recorded  in  the  office  of  the  clerk  of  the  county  court  where  the  land  lies. 
Seals  are  not  necessary. 

UTAH. — Deeds  must  be  signed  by  the  grantor  in  the  presence  of  one  or  more 
witnesses,  acknowledged,  or  proved  and  recorded.     A  seal  is  unnecessary. 

VERMONT. — Deeds  must  be  signed  and  sealed  (and  a  scroll  is  not  sufficient) 
in  the  presence  of  two  witnesses,  acknowledged,  and  recorded  in  the  clerk's  office  of 
the  town  or  city  where  the  property  is. 

VIRGINIA. — A  deed  must  be  signed  and  sealed  by  the  grantor,  acknowledged 
or  proved  by  two  witnesses,  and  recorded  within  sixty  days  in  the  office  of  the  county 
clerk  of  the  county  where  the  land  lies.     A  scroll  is  sufhcient. 

WASHINGTON. — The  deed  must  be  in  writing,  signed  by  the  grantor,  ac- 
knowledged, and  recorded.     The  use  of  private  seals  is  abolished. 

WEST  VIRGINIA. — Deeds  must  be  executed  under  seal  or  scroll,  acknowl- 
edged or  proved  by  two  witnesses,  and  recorded  in  the  county  where  the  land  is. 
Witnesses  are  not  required  when  deed  is  acknowledged. 

WISCONSIN. — Deeds  must  be  signed  and  sealed  in  presence  of  two  witnesses, 
acknowledged,  and  recorded  in  the  county  where  the  lands  are.  A  scroll  answers  for 
a  seal. 

WYOMING. — Deeds  must  be  signed  and  sealed  by  the  grantor  in  the  presence 
of  one  witness,  acknowledged,  and  recorded.     A  scroll  answers  for  a  seal. 


CHAPTER  XXX. 

MORTGAGES  OF  LAND. 

The  purpose  of  a  mortgage  is  to  give  to  a  creditor  the 
security  of  property.  It  is  very  similar  to  a  pledge,  although 
not  the  same  thing. 

Mortgages  are  now  made  of  personal  property,  as  well  as  of 
real  property;  but  we  will  consider  in  this  chapter  a  mortgage 
of  real  property  ;  or,  as  it  is  usually  called,  a  mortgage  deed. 

This  is  a  deed  conveying  the  land  to  the  creditor  as  fully, 
and  in  precisely  the  same  way,  as  if  it  were  sold  to  him  outright ; 
but  with  an  addition.  This  consists  of  a  clause  inserted  before 
the  clause  of  execution,  to  the  effect  that  if  the  grantor  (the 
mortgagor)  shall  pay  to  the  grantee  (the  mortgagee)  a  certain 
amount  of  money  at  a  certain  time,  then  the  deed  shall  be  void. 
It  is  usually  expressed  in  words  substantially  like  these : 


MORTGAGES  OF  LAND.  543 

"Provided,  nevertheless,  that  if  the  said  A  B  (the  grantor), 
his  heirs,  executors,  or  administrators,  shall  pay  to  the  said  C  D 
(the  grantee),  his  executors,  administrators,  or  assigns,  the  sum 

of  $ with  interest  (semi-annually,  or  otherwise  as  agreed 

on),  on  or  before  tlie day  of ,  then  this  deed,  and  also  a 

certain  promissory  note  signed  by  said  A  B,  whereby  said  A  B 
promised  to  pay  said  C  D,  or  his  order,  the  said  sum  at  the  said 
time,  shall  both  be  void;  and  otherwise  shall  remain  in  full 
force." 

In  some  states  it  is  more  frequent  to  make  a  bond,  instead 
of  a  note,  to  be  secured  by  the  mortgage;  and  the  proviso 
should  be  altered  accordingly ;  and  it  should  also  be  made  to 
express  any  other  terms  agreed  on.  Some  of  these  will  be 
spoken  of  presently. 

In  law,  everything  is  a  mortgage  which  consists  of  a  valid 
conveyance,  and  a  promise,  or  agreement,  which  may  be  on  the 
same  or  on  a  different  piece  of  paper  or  instrument,  providing 
that  the  conveyance  shall  be  void  when  a  certain  debt  is  paid, 
or  the  act  performed  for  which  the  mortgage  is  security. 

The  mortgagee  has  now  a  title  to  the  land;  but  it  is  subject 
to  avoidance  by  payment  of  the  debt.  Until  such  payment,  the 
land  is  his ;  and  all  the  mortgagor  owns  in  relation  to  it  is  a 
right  to  pay  the  debt  and  redeem  the  land.  Hence,  a  mortgagee 
has  instantly  as  good  a  right  to  take  possession  of  the  land 
(unless,  as  is  now  common,  the  deed  provides  that  the 
mortgagor  may  retain  possession)  as  if  he  were  an  outright 
purchaser. 

Formerly,  a  mortgagor  had  a  right  to  redeem  his  land  only 
before  or  when  the  debt  became  due ;  for  if  he  did  not  pay  the 
money  when  it  was  due,  he  had  no  further  right.  But  courts  of 
equity,  deeming  this  too  hard,  allowed  him  a  further  time  to 
redeem  it.  And  courts  of  law  adopted  the  same  rule,  which  is 
also  contained  in  the  statutes  of  all  our  States.  This  right  to 
redeem  is  called  a  right  in  equity  to  redeem,  or,  more  briefly 
and  commonly,  an  equity  of  redemption ;  which  all  courts  now 
regard  and  protect.  The  mortgagor  may  sell  this  equity  of 
redemption,  or  he  may  mortgage  it  by  making  a  second  or 
other  subsequent  mortgage  of  the  land,  and  it  may  be  attached 


544 


MORTGAGES  OF  LAND. 


by  creditors,  and  would  go  to  assignees  as  a  part  of  his  property 
if  he  became  insolvent.  The  time  within  which  a  mortgagor 
may  thus  redeem  his  land  is  usually  three  years. 

The  law  regards  this  equity  as  so  important  that  it  will  not 
permit  a  party  to  lose  it  by  his  own  agreement.  Thus,  if  a 
mortgagor  agrees  with  the  mortgagee,  in  the  most  positive  terms, 
or  in  any  way  he  can  contrive,  or  for  any  consideration,  that  he 
will  have  no  equity  of  redemption,  and  that  the  mortgagee  may 
have  possession  and  absolute  title  as  soon  as  the  debt  is  due 
and  unpaid,  the  law  sets  aside  all  such  agreements,  and  gives 
the  debtor  his  equity  of  redemption  for  three  years. 

Within  a  few  years,  however,  a  way  has  been  found  to  effect 
this  purpose  indirectly,  which  the  law  sanctions.  Many  persons 
object  to  lending  their  money  on  mortgage,  because  they  vv'ill 
have  to  wait  three  years  after  the  debt  is  due  before  the  land 
can  be  certainly  theirs.  But  it  is  now  quite  common  for  the 
mortgage  deed  to  contain  an  agreement  of  the  parties,  that,  if 
the  money  is  not  paid  when  it  is  due,  the  mortgagee  may,  in  a 
certain  number  of  days  thereafter,  sell  the  land  (providing  also 
such  precautions  to  secure  a  fair  price  as  may  be  agreed  on), 
and,  reserving  enough  to  pay  his  debt  and  charges,  pay  over 
the  balance  to  the  mortgagor.  This  is  called  a  power  of  sale 
mortgage. 

The  three  years  of  redemption  do  not  begin  from  the  day 
when  the  debt  is  due  and  unpaid,  unless  the  mortgagee  then 
enters  and  takes  possession  for  the  purpose  of  yijr^f^j/;?^  the 
mortgage,  as  the  legal  phrase  is;  by  which  phrase  is  meant 
extinguishing  the  equity  of  redemption.  If  the  debt  has  been 
due  a  dozen  years,  the  mortgagor  may  still  redeem,  unless  the 
mortgagee  has  entered  to  foreclose,  and  three  years  have  elapsed 
afterwards. 

He  may  make  entry  for  this  purpose  in  a  peaceable  manner, 
before  witnesses,  as  pointed  out  in  the  statutes  regulating 
mortgages,  or  by  an  action  at  law. 

If  the  mortgagor  redeems,  he  must  tender  the  debt,  with 
interest,  and  the  lawful  costs  and  charges  of  the  mortgagee  ; 
but  he  will  be  allowed  such  rents  and  profits  as  the  mortgagee 
has  actually  received,  or  would  have  received  but  for  his  own 
fault. 


MORTGAGES  OF  LAXD. 


5^5 


It  is  commonly  thought  that  the  mortgagor  has  a  right  to 
retain  possession  until  the  debt  is  due  and  unpaid,  and  in  fact 
he  usually  does  so.  l^ut  we  have  seen  that  the  mortgagee  has 
just  as  much  right  of  immediate  possession  as  a  buyer;  and 
therefore,  if  it  is  not  intended  that  he  should  have  possession  at 
once,  the  mortgage  deed  ought  to  contain  a  clause  to  the  effect 
that  the  mortgagor  may  retain  possession  as  long  as  he  pays 
instalments  and  interest  as  due,  and  complies  with  his  other 
agreements. 

One  of  these  other  agreements,  which  is  now  very  common, 
is  that  the  mortgagor  shall  keep  the  premises  insured  in  a  cer- 
tain sum  for  the  security  of  the  mortgagee ;  and,  if  there  be 
such  an  agreement,  it  should  be  expressed  in  the  deed.  Other- 
wise, if  the  mortgagee  insures  the  house,  he  cannot  charge  the- 
premium  to  the  mortgagor. 

If  a  mortgagor  erects  buildings  on  the  mortgaged  land,  or 
puts  fixtures  there,  and  the  mortgagee  takes  possession  of  thft 
land,  and  forecloses  the  mortgage,  he  gets  all  these  additions. 
If  the  mortgagee  puts  them  on  the  land,  and  the  mortgagor 
redeems,  he  gets  the  benefit  of  them  all,  without  paying  the 
mortgagee  for  them.  Such  is  the  effect  of  the  law  if  there  be 
no  bargain  between  the  parties  about  these  things.  But  they 
may  make  any  bargain  about  them  they  choose  to  make. 

In  the  Forms  appended  to  this  chapter  are  many  Forms  of 
release  and  discharge  of  mortgages.  In  some  states  it  is  coxyy- 
mon  to  release  a  mortgage  by  a  quitclaim  deed  from  the  holder 
of  the  mortgage  to  the  holder  of  the  land  or  of  the  equity  or 
right  of  redemption.  And  not  unfrequently  it  is  done  by  an 
acknowledgment  of  satisfaction,  release,  or  discharge  drawn  by 
the  Register  or  Recorder  of  Deeds  on  the  margin  of  the  record 
of  the  mortgage,  and  dulv  signed  by  the  mortgagee  or  holder 
of  the  mortgage.  Any  instrument  will  have  the  effect  of 
discharging  and  annulling  a  mortgage,  which  declares  with 
sufficient  definiteness  that  the  debt,  obligation,  or  covenant, 
which  that  mortgage  was  intended  to  secure,  is  paid,  satisfied,  or 
performed ;  the  instrument  being  duly  signed,  sealed,  and 
acknowledged,  and  placed  on  record.  It  takes  effect  like  other 
deeds  from  the  time  it  is  placed  in  the  Recorder's  hands, 
.      35 


546  MORTGAGES  OF  LAND. 

Whenever  a  mortgage  is  discharged  in  any  way,  the  Recorder 
makes  an  entry  to  that  effect  on  the  margin  of  the  record  of 
the  mortgage. 

The  remarks  which  were  made  at  the  close  of  the  preceding 
chapter  (just  before  the  Forms)  concerning  the  various  Forms  of 
deeds  conveying  land,  apply  with  equal  force  to  deeds  of  mort- 
gage of  land ;  and  I  refer  to  them  now  because  they  are  equally 
necessary  to  the  proper  understanding  and  use  of  the  following 
Forms. 

(169.) 

A  Promissory  Note,  to  be  Secured  by  Mortgage. 

i8 

for  value  received  promise 

lo  pa}-  to  dollars,  at 

with  interest  at  the  rate  of  per  cent,  per  annum. 

This  note  is  secured  by  a  deed  of  mortgage  of  even  date  herewith  from 
to 
%  {Signature.) 

(170.) 

Bond,  to  be  Secured  by  a  Mortgage. 

Know   all    Men    by   these    Presents,    That    I    {name   of  obligor)   of 
in    the    County  of  and    State  of 

,  am  held,  bound,  and  obliged  unto  {tiavie  of  obligee)  of 
in  the  County  of  and  State  of  in  the 

sum  of  {penalty  iis7ially  twice  as  tfiuch  as  the  actual  debt)  to  be  paid  to  the 
said  {the  obligee)  his  executors,  administrators,  heirs,  or  assigns,  and  to  this 
payment  I  hereby  bind  myself,  my  heirs,  executors,  and  administrators, 
firmly  by  these  presents. 

Sealed  with  my  seal,  this  day  of  in  the 

year 

The  Condition  of  the  above  obligation  is  such,  that  if  I  the  said 
{name  of  the  obligor)  or  my  heirs,  executors,  or  administrators,  shall  pay  or 
cause  to  be  paid  unto  the  said  {name  of  the  obligee)  his  heirs  or  assigns  the 
sum  of  {here  insert  the  amount  of  the  debt  or  sum  to  be  secjired)  on  the 

day  of  in  the  year  ,  with  interest  at 

per  cent.,  payable  six  months  from  the  date  hereof,  and  every  six  months 
afterwards,  until  the  said  sum  is  paid,  then  the  above  obligation  shall  be  void 
and  of  no  effect,  and  otherwise  it  shall  remain  in  full  force.  And  I  further 
agree  and  covenant,  that  if  any  payment  of  interest  be  withheld,  or  delayed 
for  days  after  such  payment  shall  fall  due,  the  said  principal  sum  and 

all  arrearage  of  interest  thereon,  shall  be  and  become  due  immediately  on 


FORMS  OF  MORTGAGES,  ETC.  547 

the  expiration  of  days,  at  the  option  of  said  (na>ite  of 

the  obligee)  or  his  executors,  administrators,  or  assigns. 

{Signature.)    {Seal.) 
{ Witness ) 

(171.) 

Mortgage  without  Power  of  Sale  and  without  "Warranty, 
but  with  Release  of  Homestead  and  of  Dower. 

This  Indenture,  made  this  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 

between  {name,  residence,  and  occupation  of  mortgagor)  and  {name  (f 
-wife)  wife  of  said  {name  of  mortgagor)  parties  of  the  first  part,  and  {no/ne, 
residence,  and  occupation  of  mortgagee)  party  of  the  second  part. 

Whereas,  The  said  party  of  the  first  part  is  justly  indebted  to  the  said 
party  of  the  second  part,  in  the  sum  of  secured 

to  be  paid  by  a  certain  promissory  note  {or  bond)  {describe  the  note  or 
bond). 

Now,  Therefore,  this  Indenture  Witnesseth,  That  the  said  parties  of 
the  first  part,  for  the  better  securing  the  payment  of  the  money  aforesaid, 
with  interest  thereon,  according  to  the  tenor  and  effect  of  the  said  note  {or 
botid^)  above  mentioned,  and  also  in  consideration  of  the  further  sum  of  one 
dollar  to  us  in  hand  paid  by  the  said  party  of  the  second  part,  at  the  delivery 
of  these  presents,  the  receipt  whereof  is  licreby  acknowledged,  have  granted, 
bargained,  sold,  and  conveyed,  and  by  these  presents  do  grant,  bargain,  sell, 
and  convey  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns 
forever,  all  that  {here  describe  the  premises  as  directed  in  Form  107). 

To  Have  and  to  Hold  the  Same,  Together  with  all  and  singular  the 
tenements,  hereditaments,  privileges,  and  appurtenances  thereunto  belonging, 
or  in  anywise  appertaining.  And  also  all  the  estate,  interest,  and  claim 
whatsoever  in  law  as  well  as  in  equity,  which  the  parties  of  the  first  part  have 
in  and  to  the  premises  hereby  conveyed  unto  the  said  party  of  the  second 
part,  and  his  heirs  and  assigns,  and  to  their  only  proper  use,  benefit,  and 
behoof.  And  the  said  parties  of  the  first  part  hereby  expressly  waive,  re- 
lease, relinquish,  and  convey  unto  the  said  party  of  the  second  part  and  his 
heirs,  executors,  administrators,  and  assigns,  all  right,  title,  claim,  interest, 
and  benefit  whatever,  in  and  to  the  above-described  premises,  and  each  and 
every  part  thereof,  which  is  given  by  or  results  from  aU  laws  of  this  State 
pertaining  to  the  exemption  of  homesteads. 

Provided  Always,  and  these  Presents  are  upon  this  Express  Cor- 
dition,  That  if  the  said  party  of  the  first  part,  or  his  heirs,  executors,  of 
administrators,  shall  well  and  truly  pay,  or  cause  to  be  paid  to  the  said  party 
of  the  second  part,  or  his  heirs,  executors,  administrators,  or  assigns,  the 
aforesaid  sum  of  money,  with  such  interest  thereon,  at  the  time  and  in  the 
manner  specified  in  the  above-mentioned  note  {o*-  bond)  according  to  the  true 
intent  and  meaning  thereof,  then,  in  that  case,  these  presents  and  everything 
herein  expressed  shall  be  absolutely  null  and  void. 


548  ^lOR  TGA  GES  OF  LA  ND. 

In  "Witness  Whereof,  The  said  parties  of  the  first  part  hereunto  set 
their  hands  and  seals,  the  day  and  year  first  above  written. 

(Signatnre  of  mortgagor.)  {Seal.) 

{Signaiure  of  wife  of  mortgagor)      {Seal.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  ^ 

[■  ss. 
County.) 

I,  in  and  for  the  said  county,  in  the  State  aforesaid, 

do  hereby  certify  that  {name  of  mortgagoi-)  personally  known  to  me  as  the 
same  person  whose  name  is  subscribed  to  the  foregoing  mortgage,  appeared 
before  me  this  day  in  person  and  acknowledged  that  he  signed,  sealed,  and 
delivered  the  said  instrument  of  writing  as  his  free  and  voluntary  act,  for 
the  uses  and  purposes  therein  set  forth. 

And  the  said  {name  of  wife)  wife  of  the  said  {name  of  mortgagor)  having 
been  by  me  examined,  separate  and  apart,  and  out  of  the  hearing  of  her  hus- 
band, and  the  contents  and  meaning  of  said  instrument  of  writing  having 
been  by  me  made  known  and  fully  explained  to  her,  and  she  also  by  me 
being  fully  informed  of  her  rights  under  the  homestead  laws  of  this  State, 
acknowledged  that  she  had  freely  and  voluntarily  executed  the  same,  and  re  ■ 
linquished  her  dower  to  the  lands  and  tenements  herein  mentioned,  and  also 
all  her  rights  and  advantages  under  and  by  virtue  of  all  laws  of  this  Stat-e 
relating  to  the  exemption  of  homesteads,  voluntarily  and  freely,  and  without 
the  compulsion  of  her  said  husband,  and  that  she  does  not  wish  to  retract 
the  same. 

Given  under  my  hand  and  official  seal,  this  day  of 

A.D.  i8 


{Signatnre)     {Seal) 


(172.) 


Mortgage,  with  Power  of  Sale,  to  Secure  a  Bond,  without 
Release  of  Dower. 

This  Indenture,  Made  the  day  of  in 

the  year  one  thousand  eight  hundred  and  between 

{name,  residence,  and  occ7ipation  of  7nortgagor)  party  of  the  first  part,  and 
{name,  residence,  and  occupation  of  mortgagee)  party  of  the  second  part : 
Whereas,  the  said  {na?ne  of  mortgagor)  is  justly  indebted  to  the  said  party 
of  the  second  part  in  the  sum  of  lawful  money 

of  the  United  States,  secured  to  be  paid  by  a  certain  bond  or  obligation 
bearing  even  date  with  these  presents,  in  the  penal  sum  of 
dollars,  lawful  money  as  aforesaid,  conditioned  for  the  payment  of  the  said 
first-mentioned  sum  of  {here  state  the  amount  due  on  the  bond,  and  the  time 
and  terms  of  paymoit)  as  by  the  said  bond  or  obligation,  and  the  condition 
thereof,  reference  being  thereunto  had,  may  more_  fully  appear. 

JTow  this  Indenture  Witnesseth,  That  the  said  party  of  the  first  part. 


FORMS  OF  MORTGAGES,  ETC.  549 

for  the  better  securing  the  payment  of  the  said  sum  of  money  mer.t'oned  in 
the  condition  of  the  said  bond  oi  obligation,  with  interest  thereon,  according 
to  the  true  intent  and  meaning  tliereof,  and  also  for  and  in  consideration  of 
the  sum  of  one  dollar,  to  him  in  hand  paid  by  the  said  party  of  the  second 
part,  at  or  before  the  ensealing,  and  delivery  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  has  grant(>d,  bargained,  sold,  aliened, 
released,  conveyed,  and  confirned,  and  by  these  presents  does  grant,  bar- 
gain, sell,  aliene,  release,  con'*  ey,  and  confirrii  unto  the  said  party  of  the 
second  part,  an:l  to  Ins  heirs  aid  assigns  forev(  r,  all  {here  desc7-ibe  the  prem- 
ises as  directed  in  Form  1 07). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  ap- 
purtenances thereunto  belonging,  cr  in  anywise  appertaining,  and  tiie«rever- 
sion  and  reversions,  remaindei'  and  remainders,  rents,  issues,  and  profits 
thereof  ;  and  also  all  the  estate,  right,  title,  interest,  property,  possession, 
claim,  and  demand  whatsoevei ,  as  well  in  law  as  in  equity,  of  the  said  party 
<  f  the  first  part,  of,  in,  and  to  the  same,  and  every  part  and  parcel  thereof 
»nth  the  appurtenances  :  To  have  and  to  hold  the  above  granted,  bargained, 
a^d  described  premises,  with  the  appurtenances,  unto  the  said  party  of  the 
second  part,  and  his  heirs  and  assigns,  to  his  and  their  ov.n  proper  use, 
benefit,  and  behoof  forever. 

Provided  Always,  and  tiiese  presents  are  upon  this  express  condition, 
that  if  the  said  party  of  the  first  part,  or  his  lieirs,  executors,  or  adminis- 
trators, shall  well  and  truly  pr}-  unto  the  said  party  of  the  second  part,  or  his 
executors,  administrators,  or  assigns,  the  said  sum  of  money  mentioned  in 
the  condition  of  the  said  bonil  or  obligation  and  the  interest  thereon,  at  the 
time  and  in  the  manner  mentoned  in  the  said  condition  according  to  the  true 
intent  and  meaning  thereof,  that  then  these  presents,  and  the  estate  hereby 
i^ranted,  shall  cease,  determine,  and  be  void.  And  the  said  {name  of  mort- 
^rt_^(?;-)  for  himself  and  his  hi;irs,  executors,  an  i  administrators,  does  cove- 
nant and  agree,  to  pay  unto  the  said  party  of  the  second  part,  or  his  execu- 
tors, administrators,  or  ass  gns,  the  said  sum  of  money  and  interest  as 
mentioned  above  and  expressed  in  the  condition  of  the  said  bond.  And  if 
default  shall  be  made  in  the  payment  of  the  said  sum  of  money  above  men- 
tioned, or  the  interest  that  may  grow  due  thereon,  or  any  part  thereof,  that 
then,  and  from  tlienceforth,  it  shall  be  lawful  foi  the  said  party  of  the  second 
part,  or  his  executors,  administrators,  or  assigns,  to  enter  into  and  upon  all  and 
singular  the  premises  hereby  granted  or  intended  so  to  be,  and  to  sell  and 
dispose  of  the  same,  and  all  benefit  and  equity  of  redemption  of  the  said 
party  of  the  first  part,  cr  his  heirs,  executors,  administrators,  or  assigns 
therein,  at  public  auction.  And  out  of  the  money  arising  from  such  sale,  to 
retain  the  principal  and  interest  which  shall  then  be  due  on  the  said  bond  or 
obligation,  together  with  the  costs  and  charges  of  advertisement  and  sale  cf 
the  same  premises,  rendering  the  overplus  of  the  purchase-money  (if  any 
there  shall  be),  unto  the  said  {name  of  7nortgagi'r)  party  of  the  first  part,  or 
his  heirs,  executors,  administrators,  or  assigns,  which  sale,  so  to  be  made, 


550 


MORTGAGES  OF  LAND. 


shall  forevor  be  a  perpetual  bar,  both  in  law  and  equity,  against  the  said  party 
of  the  first  part,  and  his  heirs  and  assigns,  and  all  other  persons  claiming  or 
to  claim  the  jDremises,  or  any  part  thereof,  by,  from,  or  under  him  or  them,  or 
any  of  them. 

In  Witness  Whereof,  The  parties  to  these  presents  have  hereunto  inter- 
changeably set  theii  hands  and  seals  the  day  and  year  first  above  written. 

{Sii^nature  of  7/iorti^ai^or.)     {Seal.) 
{Signature  of  mortgagee.)     {Seal.) 
Sealed  and  Delivered  in  the  Presence  of 

State  of  ^ 

C:oUNTY   OF  ) 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  .ind  before  me  personally  came         {name  of  both 

parties)  who  aie  known  to  me  to  be  the  individuals  described  in,  and  who 
executed  the  foregoing  instrument,  and  acknowledged  that  they  executed 
the  same. 

{Signature^ 

(173.) 

Mortgage  to  secure  a  Debt,  with  Power  of  Sale.— Short 

Form. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundied  and  between      {name.,  residence, 

and  occupation  of  mortgagor)  jiarty  of  the  first  part,  and  {name,  residence, 
and  occupation  of  mortgagee)  .^oxXrj  of  the  second  part,  witnesseth,  that  the 
said  party  of  the  first  part,  in  consideration  of  the  sum  of  {the  a)nount 
of  the  debt)  to  him  duly  paid  before  the  delivery  hereof,  has  bargained  and 
sold,  and  by  these  presents  does  grant  and  convey  to  the  said  party  of  the 
second  part,  and  his  heirs  and  assigns  forever,  all  {here  describe  the  premiser- 
as  directed  in  Forjn  107)  with  the  ajipurtenances,  and  all  the  estate,  right,  title, 
and  interest  of  the  said  party  of  the  first  part  therein. 

This  Grant  is  intended  as  a  security  for  the  payment  of  {here  describe 
the  debt)  which  payments,  if  duly  made,  will  render  this  conveyance  void. 
And  if  default  shall  be  made  in  the  payment  of  the  principal  or  interest  above 
mentioned,  then  the  said  party  of  the  second  part,  or  his  executors,  admin- 
istrators, or  assigns,  are  hereby  authoi  ized  to  sell  the  premises  above  granted, 
or  so  much  thereof  as  will  be  necessaiy  to  satisfy  the  amount  then  due,  with 
the  costs  and  expenses  allowed  by  law. 

In  Witness  Whereof,  the  said  party  of  the  first  part  has  hereunto  set 
his  hand  and  seal  the  d.iy  and  year  first  above  written. 

{Signature?)    {Seal.) 

Sealed  and  Delivered  in  the  Presence  of 


FORMS  OF  MORTGAGES,  ETC.  551 

State  of 


ss. 
County  of 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  and  before  me  personally  came  {name  of 

viortgago}\  who  is  known  to  me  to  be  the  individual  described  in,  and  who 

executed  the  foregoing  instrument,  and  acknowledged  that  he  executed  the 

same,  as  his  free  act  and  deed. 

(Signature.) 

(174.) 

Mortgage  to  secure  a  Debt,  fuller  Form,  with  Power  of 

Sale. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  {7iame,  residence, 

atid  occupation  of  the  mortgagor)  party  of  the  first  part,  and  {name,  residence, 
and  occnpation  of  the  mortgagee)  party  of  the  second  part : 

Whereas,  the  said  party  of  the  first  part  is  justly  indebted  to  the  said 
party  of  the  second  part  in  {here  describe  the  amount  and  terms  of  the  debt, 
or  note,  or  bond). 

Now  this  Indenture  Witnesseth,  That  the  said  party  of  the  first  part, 
for  the  better  securing  the  debt  {or  note,  or  bond)  above  described,  accordin',; 
to  the  true  intent  and  meaning  thereof,  and  also  for  and  in  consideration  cf 
the  sum  of  one  dollar  to  him  in  hand  paid  by  the  said  party  of  the  seconl 
part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  has  granted,  bargained,  sold,  aliened, 
remised,  released,  conveyed,  and  confirmed,  and  by  these  presents  does 
grant,  bargain,  sell,  aliene,  remise,  release,  convey,  and  confirm  unto  the  sai  1 
party  of  the  second  part,  and  to  his  heirs  and  assigns  forever,  all  {he>e 
describe  the  premises  as  directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof. 
And  also  all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equit)-,  of  the  said  party  of  the  first 
part,  of,  in,  and  to  the  same,  and  every  part  and  parcel  thereof  with  the 
appurtenances  :  To  have  and  to  hold  the  above  granted,  bargained,  and 
described  premises,  with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  and  his  heirs  and  assigns,  to  his  and  their  own  proper  use,  benefit,  and 
behoof  forever. 

Provided  Always,  and  these  presents  are  upon  this  express  condition, 
that  if  the  said  party  of  the  first  part,  or  his  heirs,  executors,  or  administrators, 
shall  well  and  truly  pay  to  the  said  party  of  the  second  part,  or  his  heirs, 
executors,  administrators,  or  assigns,  the  above-described  debt  {or  note,  or 
bond)  according  to  terms  and  tenor  thereof,  then  this  deed  {and  also  said  debt, 


552 


MORTGAGES  OF  LAND. 


or  note,  or  bond)  shall  be  wholly  discharged  and  void;  and  otherwise  shall 
remain  in  full  force  and  effect.  And  if  default  shall  be  made  in  the  payment 
of  the  said  sum  of  money  above  mentioned,  or  the  interest  that  may  grow 
due  thereon,  or  of  any  part  thereof,  that  then  and  from  thenceforth  it  shall  be 
lawful  for  the  said  party  of  the  second  part,  or  his  executors,  administrators, 
and  assigns,  to  enter  into  and  upon  all  and  singular  the  premises  hereby 
granted,  or  intended  so  to  be,  and  to  sell  and  dispose  of  the  same,  and  all 
benefit  and  equity  of  redemption  of  the  said  party  of  the  first  part,  or  his 
heirs,  executors,  administrators,  or  assigns,  therein,  at  public  auction, 
according  to  the  act  in  such  case  made  and  provided.  And  as  the  attor- 
ney of  the  said  party  of  the  first  part,  for  that  purpose  by  these  presents 
duly  authorized,  constituted,  and  appointed,  to  make  and  deliver  to  the  pur- 
chaser or  purchasers  thereof,  a  good  and  sufficient  deed  or  deeds  of  convey- 
ance in  the  law  for  the  same,  in  fee-simple,  and  out  of  the  money  arising 
from  such  sale,  to  retain  the  principal  and  interest  which  shall  then  be  due 
on  the  said  debt  {or  note,  or  bond)  together  with  the  costs  and  charges  of 
advertisement  and  sale  of  the  said  premises,  rendering  the  overplus  of  the 
\)urchase-money  (if  any  there  shall  be)  unto  the  said  party  of  the  first  part, 
or  his  heirs,  executors,  administrators,  or  assigns ;  which  sale,  so  to  be  made, 
shall  forever  be  a  perpetual  bar,  both  in  law  and  equity,  against  the  said 
|)arty  of  the  first  part,  or  his  heirs  and  assigns,  and  all  other  persons  claim- 
ing or  to  claim  the  premises  or  any  part  thereof,  by,  from,  or  under  him, 
ihem,  or  either  of  them. 

In  Witness  Wharuof,  The  parties  to  these  presents  have  hereunto  set 
iheir  hands  and  seals  the  day  and  year  first  above  written. 

{Signature  of  mortgagor)        {Seal.) 
{Signature  of  mortgagee?)        {Sea!.) 
Sealed  and  Delivered  in  the  Presence  of 

State  of  ■) 

>  ss. 
County  of  ) 

On  the  day  of  in  tliC  year  one  thousand 

eight  hundred  and  before  me  personally  came  (name  of  both  par- 

ties) who  are  known  to  me  to  be  the  individuals  described  in,  and  who  exe- 
cuted the  foregoing  instrument,  and  acknowledged  that  they  executed  the 

same. 

{Signattire) 

(175.) 

Deed  Poll  oi  Mortgage,  with  Power  to  Sell,  and  Insurance 
Clause,  and  Release  of  Dower  and  Homestead. 

Know  all  Men  by  these  Presents,  That  I  {name,  j-esidence,  and  occu- 
pation of  mortgagor)  in  consideration  of  to  me  paid  by  {name, 
reside7ice,  and  occupation  of  mortgagee)  the  receipt  whereof  is  hereby 
acknowledged,  do  hereby  give,  grant,  bargain,  sell,  and  convey  unto  the  said 


FORMS  OF  MORTGAGES,  ETC.  553 

{jiame  of  mortgagee)  all  that  lot  or  parcel  of  land,  with  all  the  buildings 
tliereon  standing,  situated  in  the  town  {or  city)  of  County  of 

State  of  and  bounded  and  described  as  follows : 

that  is  to  say  {Jure  describe  the  premises  as  directed  in  Form  loj). 

To  Have  and  to  Hold  the  afore-granted  premises,  with  the  privileges, 
easements,  and  appurtenances  thereto  belonging,  to  the  said  grantee,  and  to 
his  heirs  and  assigns,  to  their  use  forever. 

And  I,  the  said  grantor,  for  myself  and  my  heirs,  executors,  and  adminis- 
trators, do  covenant  with  the  said  grantee,  and  his  heirs  and  assigns,  that  I 
am  lawftrily  seized  in  fee  of  the  afore-granted  premises ;  that  they  are  free 
from  all  incumbrances  (if  any  incnmbratice  exists,  say  '•'■  except  as  follo'ws,^'' 
and  describe  the  incumbrance,)  that  I  have  good  right  to  sell  and  convey  the 
same  to  the  said  grantee,  and  his  heirs  and  assigns  as  aforesaid  ;  and  that- 1 
will,  and  my  heirs,  executors,  and  administrators  shall  warrant  and  defend 
the  same  to  the  said  grantee,  and  his  heirs  and  assigns  forever,  against  the 
lawful  claims  of  all  persons. 

Provided,  Nevertheless,  That  if  the  said  grantor,  or  his  heirs,  execu- 
t  )rs,  or  administrators,  shall  pay  unto  the  said  grantee,  cr  his  execuiors, 
administrators,  or  assigns,  the  sum  of  dollarsYij^ 

in  days  {or  months)  from  the  day  of  the  date  hereof, 

with  interest  on  said  sum  at  the  rate  of  per  centum  per  annum,  payable 

{semi-anmially)  and  until  such  payment  keep  the  buildings  standmg  on  the 
land  aforesaid  insured  against  fire,  in  a  sum  not  less  than 
dollars,  for  the  benefit  of  said  mortgagee,  and  payable  to  him  in  case  of  loss, 
at  some  insurance  office  approved  by  said  mortgagee ;  or  in  any  default 
thereof,  shall  on  demand  pay  to  said  mortgagee  all  such  sums  of  money  as 
the  said  mortgagee  shall  reasonably  pay  for  such  insurance,  with  interest, 
and  also  pay  all  taxes  levied  or  assessed  upon  the  said  premises,  then  this 
deed,  as  also  {a  certain  bond  or)  a  certain  promissory  note,  bearing  even 
date  with  these  presents,  signed  by  tl.e  said  mortgagor,  whereby  for  value 
received  he  promises  to  pay  the  said  mortgagee  or  his  order,  the  said  sum 
and  interest,  at  the  time  aforesaid,  shall  both  be  absolutely  void  to  all  intents 
and  purposes. 

But  if  default  shall  be  made  in  the  payment  of  the  money  above  men- 
tioned, or  the  interest  that  may  grow  due  thereon,  cr  of  any  part  thereof, 
then  it  shall  be  lawful  for  the  said  grantee,  or  his  executors,  administrators, 
or  assigns  to  sell  and  dispose  of  all  and  singular  the  premises  hereby  granted 
or  intended  to  be  granted,  and  all  benefit  and  equity  of  redemption  of  the 
said  {name  of  the  ?nortgagor)  the  grantor,  his  heirs,  executors,  administrators, 
or  assigns  therein,  at  public  auction  ;  such  sale  to  be  on  or  near  the  prem- 
ises hereby  granted;  first  giving  notice  of  the  time  and  place  of  sale,  by 
publishing  the  same  once  each  week,  for  three  successive  weeks,  in  {name  of 
the  fieicspaper)  a  newspaper  printed  in  the  county  of  aforesaid; 

and  in  his  or  their  own  names,  or  as  the  attorney  of  the  said  {name  of  mort- 
gagor) the  grantor,  for  that  purpose  by  these  presents  duly  authorized,  con- 


554  MORTGAGES  OF  LAND. 

stituted  and  appointed,  to  make  and  deliver  to  the  purchaser  or  purchasers 
thereof,  a  good  and  sufficient  deed  or  deeds  of  conveyance  for  the  same  in 
fee-simple;  and  out  of  the  money  arising  from  such  sale,  to  retain  the  said 
sum  of  dollars,  or  the  part  thereof  remaining  unpaid,  and 

also  the  interest  then  due  on  the  same,  together  with  the  costs  and  charges 
of  advertising  and  selling  the  same  premises ;  rendering  the  surplus  of  the 
purchase-money,  if  any  there  be,  over  and  above  said  sum  and  interest  as 
aforesaid,  together  with  a  true  and  j^articular  account  of  said  sale  and 
charges,  to  the  said  (tta7!te  of  the  tnortgai^or)  the  grantor,  his  heirs,  executors, 
administrators,  or  assigns ;  which  sale,  so  to  be  made,  shall  forever  be  a 
perpetual  bar,  both  in  law  and  equity,  against  the  said  {name  of  the  viort- 
gagor)  the  grantor,  and  his  heirs  and  assigns,  and  all  other  persons  claiming 
or  to  claim  the  premises,  or  any  part  thereof,  by,  from,  or  under  him,  them, 
or  any  of  them. 

And  Provided  Also,  that  until  some  breach  of  the  condition  of  this  deed, 
the  grantee  shall  have  no  right  to  enter  and  take  possession  of  the  premises, 
and  hold  the  same. 

In  Witness  Whereof,  We  the  said  {name  of  mortgagor')  and  {name 
of  his  wife)  wife  of  the  said  {>iame  of  mortgagor)  in  token  of  her  release 
of  all  right  and  title  of  or  to  both  dower  and  homestead  in  the  granted 
premises,  have  hereunto  set  our  hands  and  seals  this 

day  of  in  the  year  of  our  Lord  eighteen  hundred  and 

{Signature  of  mortgagor.)  {Seal.) 

{Signature  of  wife  of  mortgagor^       {Seal.) 
Executed  and  Delivered  in  Presence  of 

ss.  i8 

Then  personally  appeared  the  above-named  and 

acknowledged  the  above  instrument  to  be  free  act  and  deed,  befoi  e 

me, 

fust  ice  of  the  Peace. 

Mortgage  by  Indenture,  with  Power  of  Sale  and  Interest  and 
Insurance  Clause,  to  secure  a  Bond. 

This  Indenture,  Made  the  day  of  in  the  year  one 

thousand  eight  hundred  and  between  {name.,  residence.,  and 

occupation  of  the  mortgagor)'^-ax\.y  of  the  first  part,  and  {nafne,  reside  Jtce,  and 
occupation  of  the  mortgagee)  party  of  the  second  part ; 

Whereas,  The  said  party  of  the  first  part  is  justly  indebted  to  the  said 
party  of  the  second  part,  in  the  sum  of  {amount  of  debt  due  on  the  bond)  dol- 
lars liwful  money  of  the  United  States,  secured  to  be  paid  by  his  certain  bond 
or  obhgation  bearing  even  date  with  these  presents,  in  the  penal  sum  of- 
(amount  of  penalty)  lawful  money  as  aforesaid,  conditioned  for  the  payment 
of  the  said  first-mentioned  sum  of  {amount  of  debt  due  on  the  bond)  lawful 


FORMS  OF  MORTGA GES,  ETC.  535 

money  as  aforesaid,  to  the  said  party  of  the  second  part,  or  his  executors, 
administrators,  or  assigns,  on  the  day  of 

which  will  be  in  the  year  one  thousand  eight  hundred  and  and 

interest  thereon  to  be  computed  from  at  and  after  the  rate 

of  per  cent,  per  annum,  and  to  be  paid  {liei-e  set  forth  the  time  and 

terms  of  the  payment). 

And.  it  is  Thereby  Expressly  Agreed,  That  should  any  deftult  be  made 
in  the  payment  of  the  said  interest,  or  of  any  part  thereof,  on  any  day  whereon 
the  same  is  made  payable,  as  above  expressed,  and  should  the  same  remain 
unpaid  and  in  arrear  for  the  space  of  days,  then  and  from 

thenceforth,  that  is  to  say,  after  the  lapse  of  the  said  days, 

the  aforesaid  principal  sum  of  [amount  of  tJie  debt)  with  all  arrearage  of 
interest  thereon,  shall,  at  the  option  of  the  said  party  of  the  second  part,  or 
his  executors,  administrators,  or  assigns,  become  and  be  due  and  payable 
immediately  thereafter,  although  the  period  above  liinited  for  the  payment 
thereof  may  not  then  have  expired,  anything  thereinbefore  contained  to  the 
contrary  thereof  in  anywise  notwithstanding  :  As  by  the  said  bond  or 
obligation,  and  the  condition  thereof,  reference  being  thereunto  had,  may 
more  fully  appear. 

Now  this  Indenture  Witnesseth,  that  the  said  party  of  the  first  part, 
for  the  better  securing  the  payment  of  the  said  sum  of  money  mentioned 
in  the  condition  of  the  said  bond  or  obligation,  with  interest  thereor, 
according  to  the  true  intent  and  meaning  thereof,  and  also  for  and  in  con^ 
sideratioa  of  the  sum  of  one  dollar  to  him  in  hand  paid  by  the  said  party  of 
the  second  part,  at  or  before  the  ensealing  and  dehvery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  has  granted,  bargained,  sold, 
a'iened,  released,  conveyed,  and  confirmed,  and  by  these  presents  doe.s 
grant,  bargain,  sell,  aliene,  rplease,  convey,  and  confirm  unto  the  said  party 
of  the  seeond  part,  and  to  his  heirs  and  assigns  forever,  all  [here  describe 
carefully,  the  land  or  premises  granted,  as  directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appuf' 
tenances  thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof  ; 
and  also  all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of  the  first 
part,  of,  in,  and  to  the  same,  and  every  part  and  parcel  thereof  with  the 
appurtenances  :  to  have  and  to  hold  the  above  granted,  bargained,  and 
described  premises,  with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  to  his  and  their  own  proper  use,  benefit,  and 
behoof  forever : 

Provided  Always,  and  these  presents  are  upon  this  express  condition, 
that  if  the  said  party  of  the  first  part,  his  heirs,  executors,  or  administrators, 
shall  well  and  truly  pay  unto  the  said  party  of  the  second  part,  his  executors, 
administrators,  or  assigns,  the  said  sum  of  money  mentioned  in  the  condi- 
tion of  the  said  bond  or  obligation,  and  the  interest  thereon,  at  the  time  and 


556 


MORTGAGES  OF  LAND. 


in  the  manner  mentioned  in  the  said  condition  according  to  the  true  intent 
and  meaning  thereof,  that  then  these  presents,  and  the  estate  hereby  granted, 
shall  cease,  determine,  and  be  void.  And  the  said  {name  of  the  7Jiortgagor) 
for  himself  and  his  heirs,  executors,  and  administrators,  does  covenant  and 
agree  to  pay  unto  the  said  party  of  tlie  second  pirt,  cr  his  executors,  admin- 
istrators, or  assi,<;ns,  the  said  sum  of  money  and  interest  as  mentioned  above 
and  expressed  in  the  condition  of  the  said  bor.d.  And  if  default  shall  be 
made  in  the  payment  of  the  said  sum  of  money  above  mentioned,  or  the 
interest  that  may  grow  due  thereon,  or  of  any  part  thereof,  that  then  and 
from  thenceforth  it  shall  be  lawful  for  the  said  party  of  the  second  part,  or 
his  executors,  administrators,  and  assigns,  to  enter  into  and  upon  all  and 
singular  the  premises  hereby  granted  or  intended  so  to  be,  and  to  sell  and 
dispose  of  the  same,  and  all  benefit  and  equity  of  redemption  of  the  said 
party  of  the  first  part,  or  his  heirs,  executors,  administrators,  or  assigns, 
therein,  at  public  auction,  according  to  law.  And  as  the  attorney  of  the  said 
;.arty  of  the  first  part,  for  that  purpose  by  these  presents  duly  authorized. 
*  onstituted,  and  appointed,  to  make  and  deliver  to  the  purchaser  or  purchasers 
»  lereof,  a  good  and  sufficient  deed  or  deeds  of  conveyance  in  the  law  for  th« 
!s  ime,  in  fee-simple,  and  out  of  the  money  arising  from  such  sale,  to  retain 
l.lie  principal  and  interest  which  shall  then  be  due  on  the  said  bond  or  oblU 
)i,;ation,  together  with  the  costs  and  charges  of  advertisement  and  sale  of  the 
liaid  premises,  rendering  the  overplus  of  the  purchase-money  (if  any  there 
uhall  be)  unto  the  said  party  of  the  first  part,  his  heirs,  executors,  adminis- 
\  rators,  or  assigns  ;  which  sale,  so  to  be  made,  shall  forever  be  a  perpetual 
iiar,  both  in  law  and  equity,  against  the  said  party  of  the  first  part,  and  his 
Veirs  and  assigns,  and  all  other  persons  claiming  or  to  claim  the  premises  or 
any  part  thereof,  by,  from,  or  under  him  or  them,  or  either  of  them. 

And  it  is  Expressly  Agreed  by  and  between  the  parties  to  these  pres- 
tnts,  that  the  said  party  of  the  first  part  shall  and  will  keep  the  buildings 
erected  and  to  be  erected  upon  the  lands  above  conveyed,  insured  against 
loss  and  damage  by  fire,  by  insurers  approved  by  the  said  party  of  the  second 
part,  and  in  an  amount  approved  by  the  said  party  of  the  second  part,  and 
assign  the  policy  and  certificates  thereof  to  the  said  party  of  the  second  part ; 
and  in  default  thereof,  it  shall  be  lawful  for  the  said  party  of  the  second  part 
to  effect  such  insurance,  and  the  premium  and  premiums  paid  for  effecting 
the  same  shall  be  a  lien  on  tlie  said  mortgaged  premises,  added  to  the  amount 
of  the  said  bond  or  obligation,  and  secured  by  these  presents,  and  payable  on 
demand  with  interest  at  the  rate  of  per  cent,  per  annum. 

In  "Witness  Whereof,  the  parties  to  these  presents  have  hereunto  inter- 
changeably set  their  hands  and  seals  the  day  and  year  first  above  written. 

{Signature  of  mortgagor)     {Seal.) 
{Signature  of  mortgagee)     {Seal.) 
Sealed  and  Delivered  in  the  Presence  of 


FOJ^JfS  OF  MOR TGA GES,  ETC.  557 

State  of  ^ 

[-  ss. 
County.  ) 

On  the  day  of  in  the  year  one  thousand  eight 

hundred  and  before  me  personally  came  the 

individuals  described  in,  and  who  executed  the  foregoing  instrument,  and 

acknowledged  thr.t  they  executed  the  same  as  their  free  act  and 

deed. 

{Sigiiature^ 
(177.) 

Mortgage  to  Executor,    with  Power  cf  Sale. 

This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  ciglit  hundred  and  between  {name,  resi- 

dence, and  occtipation  of  the  mortgagor)  party  of  the  first  part,  and  {name 
and  residence  of  the  7/iortgagee)  executor  cf  the  last  will  and  testament  of 
{name  and  residence  of  the  testator)  deceased,  of  the  second  part;  whereas, 
the  s:iid  party  of  the  first  part  is  justly  indebted  to  the  said  party  of  the 
second  part  in  the  sum  cf  lawful  money  of  the  United  States  o| 

America,  secured  to  be  paid  by  a  certain  bond  or  obligation  bearing  even  datii 
with  these  presents,  in  the  penal  sum  of  lawful  money  as  afore^ 

said,  conditioned  for  the  payment  of  the  said  f.rst-mentioned  sum  {state  thu 
terms  of  the  payment,  and  if  the  bond  was  made  to  the  testator,  state  that) 
as  by  the  said  bond  or  obhgation  and  the  condition  thereof,  reference  bein^ 
thereunto  had,  may  more  fully  appear. 

Now  this  Indenture  Witnesseth,  That  the  said  party  of  the  first  part 
for  the  better  securing  the  payment  of  the  said  sum  of  money  mentioned  in 
the  condition  of  the  said  bond  or  obligation  with  interest  thereon,  according 
to  the  true  intent  and  meaning  thereof,  and  also  for  and  in  consideration  of 
the  sum  of  one  dollar,  to  him  in  hand  paid  by  the  said  party  of  the  second 
part,  at  or  before  the  ensealing  and  deh'very  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  has  granted,  bargained,  sold,  aliened, 
relea.sed,  conveyed,  and  confirmed,  and  by  these  presents  does  grant,  bargain, 
sell,  aliene,  release,  convey,  and  confirm,  unto  the  said  party  of  the  second 
part,  and  his  successors  and  assigns  forever,  all  {here  describe  carcfiiUy  the 
land  or  premises  granted,  as  directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits  thereof: 
and  also  all  the  estate,  right,  title,  interest,  property,  po.'^session,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of  the  first 
part,  of,  in,  and  to  the  same,  and  every  part  and  parcel  thereof  with  the 
appurtenances.  To  have  and  to  hold  the  above  granted,  bargained,  and 
described  premises,  with  the  appurtenances,  unto  the  said  party  of  the 
f  scond  part,  his  successors  and  assigns,  to  their  only  proper  use,  benefit, 
and  behoof  forever.     Provided  always,  and  these  presents   are  upon  this 


558  MOR  TGA  CES  OF  LAND. 

express  condition,  that  if  the  said  party  of  the  first  part,  or  his  heirs, 
executors,  or  administrators,  shall  we'd  and  truly  pay  unto  the  said  party  of 
the  second  part,  or  his  successors  or  assigns,  the  said  sum  of  money 
mentioned  in  the  condition  of  the  said  bond  or  obligation,  and  the  interest 
thereon  at  the  time,  and  in  the  manner  mentioned  in  the  said  condition, 
according  to  the  true  intent  and  meaning  thereof,  that  then  these  presents, 
and  the  estate  hereby  granted,  shall  cease,  determine,  and  be  null  and  void. 
And  the  said  party  of  the  first  part,  for  himself  and  his  heirs,  executors, 
and  administrators,  does  covenant  and  agree  to  pay  unto  the  said  party  of 
the  second  part,  his  successors  or  assigns,  the  said  sum  of  money  and 
interest,  as  mentioned  above,  and  expressed  in  the  condition  of  the  said 
bond.  And  if  default  shall  be  made  in  the  payment  of  the  said  sum  of 
money  above  mentioned,  or  the  interest  that  may  grow  due  thereon,  or  of 
any  part  thereof,  that  then  and  from  thenceforth  it  shall  be  lawful  for  the 
said  party  of  the  second  part,  his  successors  and  assigns,  to  enter  into  and 
upon  all  and  singular  the  premises  hereby  granted,  or  intended  so  to  be,  and 
to  sell  and  dispose  of  the  same,  and  all  benefit  and  equity  of  redemption  of 
the  said  party  of  the  first  part,  or  his  heirs,  executors,  administrators,  or 
assigns  therein,  at  public  auction,  according  to  law.  And  as  the  attorney  or 
attorneys  of  the  said  party  of  the  first  part,  for  that  purpose  by  these  pres- 
ents duly  authorized,  constituted,  and  appointed,  to  make  and  deliver  to  the 
purchaser  or  purchasers  thereof  a  good  and  sufficient  deed  or  deeds  of  con- 
veyance in  the  law  for  the  same,  in  fee-simple,  and  out  of  the  money  arising 
from  such  sale,  to  retain  the  principal  and  interest  which  shall  then  be  due 
on  the  said  bond  or  obligation,  together  with  the  costs  and  charges  of 
advertisement  and  sale  of  the  said  premises,  rendering  the  overplus  of  the 
purchase-money  (if  any  there  shall  be)  unto  the  said  party  of  the  first  part, 
his  heirs,  executors,  administrators,  or  assigns;  which  sale,  so  to  be  made, 
shall  forever  be  a  perpetual  bar,  both  in  law  and  equity,  against  the  said 
party  of  the  first  part,  his  heirs  and  assigns,  and  all  other  persons  claiming 
or  to  claim  the  premises,  or  any  part  thereof,  by,  from,  or  under  him,  them, 
or  any  of  them. 

In  "Witness  Whereof,  the  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

{Signatures?)        {Seals.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  ^ 

>  ss. 
County.  ) 

On  the  day  of  in  the  year  one  thousand  eight  hundred 

and  before  me  personally  came  the  individuals 

described  in,  and  who  executed  the  foregoing  instrument,  and 
acknowledged  that  they  executed  the  same  as  their  free  act  and  deed. 

(Signatttre.) 


FORMS  OF  MOR TGA GES,  ETC.  550 

(178.) 
Mortgage  of  a  Lease. 

This  Indenture,  Made  the  day  of  in  the  year 

one  thousand  eight  hundred  and  between  {navze,  residence,  and  occu- 

pation of  Mortgagor)  party  of  the  first  part,  and  {nai/ie,  residence,  and 
occupation  of  mortgagee)  party  of  the  second  part :  Whereas,  {name,  resi- 
dence, and  occupation  of  the  lessor  of  the  lease  to  be  mortgaged)  did,  by  a 
certain  indenture  of  lease,  bearing  date  the  day  of  in  the 

year  one  thousand  eight  hundred  and  demise,  lease,  and  to 

farm  let,  unto  the  said  party  of  the  first  part,  and  to  his  executors,  adminis- 
trators, and  assigns,  all  and  singular  the  premises  hereinafter  mentioned  and 
described,  together  with  their  appurtenances  :  To  have  and  to  hold  the  same 
unto  the  said  party  of  the  first  part,  and  to  his  executors,  administrators, 
and  assigns,  for  and  during  and  until  the  full  end  and  term  of 
years,  from  the  day  of  and  fully  to  be  complete 

and  ended,  yielding  and  paying  therefor  unto  the  said  {name  of  the  lessor) 
and  to  his  heirs,  executors,  administrators,  or  assigns,  the  yearly  rent  or  sum 
ot  {state  the  rent,  and  the  times,  or  terms  of  payments). 

And  "Whereas,  The  said  party  of  the  first  part  is  justly  indebted  to  the 
said  party  of  the  second  part,  in  the  sum  of  dollars,  lawful  money 

i>f  the  United  States  of  America,  secured  to  be  paid  by  his  certain  bond  or 
obligation  bearing  even  date  with  these  presents,  in  the  penal  sum  of 
dollars,  lawful  money  as  aforesaid,  conditioned  for  the  payment  of  the  said 
first-mentioned  sum  of  {here  give  the  a?nount  of  the  debt  to  be  paid)  as  by 
the  said  bond  or  obligation  and  the  condition  thereof,  reference  being  there- 
unto had,  may  more  fully  appear. 

Now  this  Indenture  Witnesseth,  That  the  said  party  of  the  first  part, 
for  the  better  securing  the  payment  of  the  said  sum  of  money  mentioned  in 
the  condition  of  the  said  bond  or  obligation,  with  interest  thereon,  accord- 
ing to  the  true  intent  and  meaning  thereof,  and  also  for  and  in  consideration 
of  the  sum  of  one  dollar,  to  him  in  hand  paid,  by  the  said  party  of  the 
second  part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  has  granted,  bargained,  sold, 
assigned,  transferred,  and  set  over,  and  by  these  presents  does  grant, 
bargain,  sell,  assign,  transfer,  and  set  over  unto  the  said  party  of  the  second 
part,  the  estate  or  premises  leased  and  transferred  by  said  indenture  of 
lease,  that  is  to  say  {here  describe  the  premises  tn  the  same  manjier  in  which 
they  are  desc7-ibed  in  the  lease),  iogtihtr  with  all  and  singular  the  edifices, 
buildings,  rights,  members,  privileges,  and  appurtenances  thereunto  belong- 
ing, or  in  anywise  appertaining  ;  and  also  all  the  estate,  right,  title,  interest, 
term  of  years  yet  to  come  and  unexpired,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of  the  first 
part,  of,  in,  and  to  the  said  demised  premises,  and  every  part  and  parcel 
thereof,  with  the  appurtenances  ;  and  also  the  said  indenture  of  lease,  and 
every  clause,  article,  and  condition  therein  expressed  and  contained. 


56o  MORTGAGES  OF  LAND. 

To  Have  and  to  Hold  the  said  indenture  of  lease,  and  other  hereby 
granted  premises,  unto  the  said  party  of  the  second  part,  his  executors, 
administrators,  and  assigns,  to  his  and  their  only  proper  use,  benefit,  and 
behoof,  for  and  during  all  the  rest,  residue,  and  remainder  of  the  said  term  of 
years  yet  to  come  and  unexpired  ;  subject,  nevertheless,  to  the  rents,  cove- 
nants, conditions,  and  j^rovisions  in  the  said  indenture  of  lease  mentioned. 

Provided  Always,  And  these  presents  are  upon  this  express  condi- 
tion, that  if  the  said  party  of  the  first  part  shall  well  and  truly  pay  unto  the 
said  party  of  the  second  part  the  said  sum  of  money  mentioned  in  the  con- 
dition of  the  said  bond  or  obligation,  and  the  interest  thereon,  at  the  time 
and  in  the  manner  mentioned  in  the  said  condition,  according  to  the  true 
intent  and  meaning  thereof,  that  then  and  from  thenceforth  these  presents,  and 
the  estate  hereby  granted,  shall  cease,  determine,  and  be  utterly  null  and 
void,  anything  hereinbefore  contained  to  the  contrary  in  anyvi^ise  notwith- 
standing. And  the  said  party  of  the  firat  part  does  hereby  covenant,  grant, 
promise,  and  agree  to  and  with  the  said  party  of  the  .=econd  part,  that 
he  shall  well  and  truly  pay  unto  the  said  party  of  the  second  part  the  said 
sum  of  money  mentioned  in  the  condition  of  the  said  bond  or  obligation, 
and  the  interest  thereon,  according  to  the  condition  of  the  said  bond  or  obliga- 
tion. And  that  the  said  premises  hereby  conveyed  now  are  free  and  clear  of 
all  incumbrances  whatsoever,  and  that  the  said  party  of  the  first  part  has  good 
right  and  lawful  autliority  to  convey  the  same  in  manner  and  form  hereby 
conveyed.  And  if  default  shall  be  made  in  the  payment  of  the  said  sum  of 
money  above  mentioned,  or  in  the  interest  which  shall  accrue  thereon,  or  of 
any  part  of  either,  that  then  and  from  thenceforth  it  shall  be  lawful  for  the 
said  party  of  the  second  part,  and  his  assigns,  to  sell,  transfer,  and  set  over 
all  the  rest,  residue,  and  remainder  of  the  said  term  of  years  then  yet  to 
come,  and  all  other  the  right,  title,  and  interest  of  the  said  party  of  the  first 
part,  of,  in,  and  to  the  same,  at  public  auction,  according  to  the  act  in  such  case 
ma'e  and  provided  :  and  as  the  attorney  of  the  said  party  of  the  first  part, 
for  that  purpose  by  these  presents  duly  authorized,  constituted,  and  appointed, 
to  make,  seal,  execute,  and  deliver  to  the  purchaser  or  purchasers  thereof,  a 
good  and  sufficient  assignment,  transfer,  or  other  conveyance  in  the  law, 
for  the  same  premises,  with  the  appurtenances  ;  and  out  of  the  money 
arising  from  such  sde,  to  retain  the  principal  and  interest  which  shall  then 
be  due  on  the  said  bond  or  obligation,  together  with  the  costs  and  charges  of 
advertisement  and  sale  of  the  same  premises,  rendering  the  overplus  of  the 
purchase-money  (if  any  there  shall  be)  unto  the  said  party  of  the  first  part, 
or  his  assigns  ;  which  sale,  so  to  be  made,  shall  be  a  perpetual  bar,  both  in 
law  and  equity,  against  the  said  party  of  the  first  part,  and  against  all 
persons  claiming  or  to  claim  the  premises,  or  any  part  thereof,  by,  from,  or 
under  him  or  them,  or  any  of  them. 

In  Y7itne.ts  Whereof,  The  said  party  cf  the  first  part  to  these  presents 
has  hereunto  set  his  hand  and  seal  the  day  and  year  first  above  written, 

{Signature.)     {Seal.) 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 


FORMS  OF  MORTGAGES,  ETC.  561 

State  of 


[•ss. 


County  of 

On  t'e  day  of  in  the  year  one  thousand  eight 

hundred  and  before  me  personally  came  wlio  is 

known  to  me  to  be  the  individual  described  in,  and  who  executed  the  fore- 
going instrument,  and  acknowledged  that  he  executed  the  same  as 
his  free  act  and  deed. 

{Signature^ 
(179.) 

Mortgagee's  Deed,  under  a  Power  of  Sale. 

This  Indenture,  Made  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  between  {name 

and  occupation  of  the  mortgagee)  of  the  County  of  and  State  of 

party  of  the  first  part,  and  {name  and  occupation  of  the 
grantee)  of  the  County  of  and  State  of  of  the 

second  part. 

Witnesseth,  That  whereas  {name  and  occ7ipation  of  the  oivner  and 
mortgagor  luho  gave  to  the  mortgagee  the  power  now  exercised)  of  the 
County  of  and  State  of  did,  by  a  certain  deed, 

dated  the  day  of  A.D.  18     ,  which  deed  is  recorded 

in  the  Recorder's  office  of  the  County  of  in  the  State  of 

on  the  day  of  A.D.  18     ,  in  book  of 

at  page  ,  grant,  sell,  and  convey  to  the  said  party  of  the  first  part  all  the 
premises  hereinafter  described,  to  secure  the  payment  of  a  certain 

debt  {or  note,  or  bond)  in  said  deed  particularly  mentioned,  and  upon  certaiu 
terms  in  said  deed  particularly  declared;  and  whereas  default  hath  been 
made  in  the  payment  of  said  debt  {note  or  bo7id),  the  said  premises  were,  by 
said  party  of  the  first  part,  duly  advertised  for  public  sale  at  the  doer 

of  the  court-house  in  the  County  of  and  State  (»f 

on  the  day  of  A.D.  18     ,  in  the  manner 

prescribed  by  said  deed,  and  were,  upon  the  day  and  year  and  at  the  place 
last  mentioned  aforesaid,  in  pursuance  of  said  notice,  sold  at  public  sale, 
and  at  said  sale  the  said  party  of  the  second  part  was  the  highest  and  best 
bidder  therefor,  and  bid  for  the  tract  first  hereinafter  named,  the  sum  of 
dollars. 

Uow,  therefore,  These  presents  witness,  that  the  said  party  of  the  first 
part,  in  pursuance  of  the  power  and  authority  in  him  vested  in  and  by  the 
said  deed,  and  in  consideration  of  the  sum  of  dollars,  to  the 

said  party  of  the  first  part  paid  by  the  said  party  of  the  second  part,  the 
receipt  whereof  is  hereby  acknowledged,  hath  released  and  quitclaimed,  an  1 
doth  hereby  convey,  remise,  release,  and  quitclaim  to  the  said  party  of  the 
second  part,  his  heirs  and  assigns  forever,  all  the  right,  title,  and  interest, 
as  well  in  law  as  in  equity,  which  the  said  party  of  the  first  part  hath 
acquired  by  virtue  of  the  deed  above  mentioned,  of,  in,  and  to  all  that  certain 
36 


562  MORTGAGES  OF  LAND. 

tract     ,  piece     ,  or  parcel     of  land  situated  in  the  County  of 

and  State  of  and  described  as  follows,  to  wit, 

{liere  describe  the  premises  as  directed  in  Form  107). 

Together  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging  or  in  anywise  appertaining,  and  the  reversions, 
remainders,  rents,  issues,  and  profits  thereof ;  and  also  all  the  estate,  right, 
title,  interest,  claim,  and  demand  whatsoever,  as  well  in  law  as  in  equity,  of 
the  said  party  of  the  first  part,  of,  in,  and  to  the  same,  and  any  and  every 
part  thereof,  with  the  appurtenances,  which  the  said  party  of  the  first  part 
acquired  by  virtue  of  said  deed  : 

To  Have  and  to  Hold  the  aforesaid  right,  title,  and  interest  of  the 
said  party  of  the  first  part,  unto  the  said  party  of  the  second  part,  his  heirs 
and  assigns  forever,  as  full  and  absolutely  as  the  said  party  of  the  first  part 
can,  by  virtue  of  the  power  and  authority  in  him  by  said  deed  vested,  con- 
vey the  same. 

In  Witness  Whereof,  The  party  of  the  first  part  hath  hereto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

{Sis^nattire  of  seller^    (Seal.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  ^ 

County.  ) 
On  the  day  of  eighteen  hundred  and  , 

before  me  of  the  County  of  in  the  State  of 

appeared  who  is  personally  known  to  me  to  be  the  real  person 

whose  name  is  subscribed  to  the  foregoing  instrument  of  writing,  as  having 
executed  the  same,  and  then  acknowledged  the  execution  thereof  as  his 
free  act  and  deed,  for  the  uses  and  purposes  herein  mentioned. 

{Signature.) 
(180.) 

Mortgage  Deed,  to  Secure  a  Bond  with  "Warrant,  in  use  in 

Pennsylvania. 

This  Indenture,  Made  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
between  {name,  residence,  and  occupation  of  the  debtor  who  is  obligor  of  the 
Bond)  of  the  first  part,  and  {na7ne,  residence,  and  occupation  of  the  creditor 
who  is  the  obligee  of  the  Bond)  of  the  other  part,  witnesseth,  that 

Whereas,  the  said  in  and  by  obliga- 

tion or  writing  obligatory  under  hand  and  seal  duly  executed, 

bearing  even  date  herewith,   stand         bound  unto  the  said 
in  the  sum  of  lawful  money  of   the   United    States  of 

America,  conditioned  for  the  payment  of  the  just  sum  of 

lawful  money  as  aforesaid,  in  together  with  interest 

thereon,  payable  at  the  rate  of  six  per  cent,  per  annum, 


FORMS  OF  MORTGAGES,  ETC.  563 

until  such  time  as  a  higher  rate  becomes  lawful,  and  immediately  thereafter 
at  the  highest  rate,  not  exceeding  per  cent.,  legally  chargeable.  Together 
with  all  tixes  and  charges  in  nature  thereof,  that  may  be  laid  or  levied  upon 
the  said  obligation,  or  this  indenture  of  mortgage,  or  the  principal  or  inter- 
est moneys  thereby  secured,  immediately  upon  their  assessment,  without  any 
fraud  or  further  delay. 

Provided,  However,  and  it  is  hereby  expressly  agreed,  that  if  at  anv 
time  default  shall  be  made  in  the  payment  of  interest  as  aforesaid,  for 
the  space   of  days  after  any  payment 

thereof  shall  fall  due,  or  in  the  payment  of  any  tax  or  charge  as  afore- 
said, for  the  space  of  days  after  notice  in  writing  of  its 
assessment  shall  be  left  upon  the  premises  hereinafter  described,  then  and 
in  such  case  the  whole  principal  debt  aforesaid  shall,  at  the  option  of  the  said 
obligee  executors,  administrators,  or  assigns,  become  due  and 
payable  immediately  ;  and  payment  of  said  principal  debt,  and  all  interest 
thereon,  may  be  enforced  and  recovered  at  once,  anything  therein  contained 
to  the  contrary  notwithstanding. 

And  Provided  Further,  however,  and  it  is  hereby  expressly  agreed, 
that  if  at  any  time  thereafter,  by  reason  of  any  default  in  payment,  either  of 
said  principal  sum  at  its  maturity,  or  of  said  interest  or 

of  taxes  and  charges,  within  the  time  specified,  a  writ  of  fieri  facias  is  prop- 
erly issued  upon  the  judgment  obtained  upon  said  obligation,  or  by  virtue  of 
said  warrant  of  attorney,  or  a  writ  of  scire  facias  is  properly  issued  upon 
this  indenture  of  mortgage,  an  attorney's  commission  for  collection,  viz.: 
per  cent,  shall  be  payable,  and  shall  be  recovered  in  addition  to 
all  principal,  interest,  and  taxes  then  due,  besides  cost  of  suit,  as  in  and 
by  the  said  recited  obligation  and  the  condition  thereof,  relation  being 
thereunto  had,  may  more  fully  and  at  large  appear. 

Now  this  Indenture  Witnesseth,  that  the  said  as 

well  for  and  in  consideration  of  the  aforesaid  debtor  principal  sum  of 
and  for  the  better  securing  the  payment  of  the  same,  with  interest  as  afore- 
said, unto  the  said  executors,  administrators,  and  assigns, 
in  discharge  of  the  said  recited  obligation,  as  for  and  in  consideration  of  the 
further  sum  of  one  dollar  unto  in  hand  well  and  truly  paid  by  the  said 
at  and  before  the  sealing  and  delivery  hereof,  the  receipt 
whereof  is  hereby  acknowledged,  granted,  bargained,  sold,  aliened, 
enfeoffed,  released,  and  confirmed,  and  by  these  presents  grant,  bargain, 
sell,  aliene,  enfeoff,  release,  and  confirm  unto  the  said  heirs  and 
assigns,  {here  describe  the  land  or  premises  granted,  substantially  as  ift 
Form  107). 

Together  with  all  and  singular  the  ways,  waters, 

water-courses,  rights,  liberties,  privileges,  improvements,  hereditaments,  and 
appurtenances  whatsoever  thereunto  belonging,  or  in  anywise  appertaining, 
and  the  reversions  and  remainders,  rents,  issues,  and  profits  thereof, 

To  Have  and  to  Hold  the  said  hereditaments  and  prem- 


564 


MORTGAGES  OF  LAND. 


ises  hereby  granted,  or  mentioned  and  intended  so  to  be,  with  the  appurte- 
nances, unto  the  said  heirs  and  assigns,  to 
and  for  the  only  proper  use  and  behoof  of  the  said  heirs 
and  assigns  forever. 

Provided  Al"ways,  nevertheless,  that  if  the  said  {name  of  the  creditor  and 
obligor)  heirs,  executors,  administrators,  or  assigns,  do  and  shall  well  and 
truly  pay,  or  cause  to  be  paid,  unto  the  said  executors, 

administrators,  or  assigns,  the  aforesaid  debt  or  principal  sum  of 
on  the  day  and  time  hereinbefore  mentioned  and  appointed 

for  payment  of  the  same,  together  with  interest  and  taxes  as  aforesaid, 
without  any  fraud  or  further  delay,  and  without  any  deduction,  defalcation, 
or  abatement  to  be  made  of  anything,  for  or  in  respect  of  any  taxes, 
charges,  or  assessments  whatsoever,  that  then,  and  from  thenceforth,  as 
well  this  present  indenture,  and  the  estate  hereby  granted,  as  the  said 
recited  obligation  shall  cease,  determine,  and  become  void,  anything  here- 
inbefore contained  to  the  contrary  thereof  in  anywise  notwithstanding. 

And  Provided,  Also,    that  it   shall   and   may  be   lawful   for  the   said 
executors,  administrators,  or  assigns,  when  and  as  soon 
as  the  principal  debt  or  sum  hereby  secured  shall  become  due  and  payable, 
as  aforesaid,  to  wit:  on  the  day  of 

Anno  Domini  one  thousand  eight  hupdred  and  or  in  case 

default  shall  be  made  for  the  space  of  days  in  the  payment  ot 

interest  on  the  said  principal  sum,  after  any 

payment  thereof  shall  fall  due,  or  in  the  payment  of  any  tax  or  charge  as 
aforesaid,  for  the  space  of  days  after  notice  in  writing  of 

its  assessment  shall  be  left  upon  the  above  described  premises,  to  sue  out 
forthwith  a  writ  or  writs  of  scire  facias  upon  this  indenture  of  mortgage 
and  to  proceed  thereon  to  judgment  and  execution,  for 
the  recovery  of  the  whole  of  said  principal  debt,  and  all  interest  and  taxes 
due  thereon,  together  with  an  attorney's  commission  for  collection,  viz , 
percent.,  besides  costs  of  suit,  without  further  stay,  any  law,  usage, 
or  custom  to  the  contrary  notwithstanding. 

In  Witness  Whereof,  The  said  parties  to  these  presents  have  hereunto 
interchangeably  set  their  hands  and  seals.     Dated   the  day  and  year  first 

above  written. 

(Seals^ 
Sealed  and  Delivered  in  the  Presence  of  us, 

On  the  day  of  Anno  Domini  iS     ,  before 

me  the  above  named  personally  appeared 

and  in  due  form  of  law  acknowledged  the  above  Indenture  of  Mortgage 
to  be  act  and  deed,  and  desired  the  same  might  be  recorded 

as  such. 

Witness  my  hand  and  official  seal  the  day  and  year  aforesaid. 

(Signature.)     (Seal.) 


FORMS  OF  MORTGAGES,  ETC.  56- 

(181.) 

Bond  with  Warrant  of  Attorney,  Referred  to  in  the  pre- 
ceding Form  180. 

Know  all  Men  by  these  Presents,  That  {navie,  residence,  and  occupa- 
tion of  the  debtor)  (hereinafter  called  the  obligor  )  held  and 
firmly  bound  unto  {name,  residence,  and  occupation  of  the  creditor)  (lierein- 
after  called  the  obligee  )  in  the  sum  of  lawful  money  of  the 
United  States  of  America,  to  be  paid  to  the  said  obligee  certain 
attorney,  executors,  administrators,  or  assigns,  to  which  payment  well  and 
tjuly  to  be  made,  do  bind  and  oblige  heirs,  executors, 
and  administrators,                                             firmly  by  these  presents. 

Sealed  with  seal.     Dated  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

The  Ccndition  of  this  Obligation  is  Such,  That  if  the  above  boun- 
('en  obligor  ,  heirs,  executors,  or  administrators,  or  any  of  them,  shall 
a  nd  do  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  above  named  ob- 
I'gee  ,  certain  attorney,  executors,  administrators,  or  assigns,  the  just 

sam  of  lawful  money  as  aforesaid,  in 

together  with  interest  thereon, 
payable  at  the  rate  of  six  per  cent,  per  annum, 

until  such  time  as  a  higher  rate  becomes  lawful,  and  immediately  there- 
after at  the  highest  rate,  not  exceeding  per  cent.,  legally  chargeable, 
together  w-ith  all  taxes,  and  charges  in  nature  thereof,  that  may  be  laid  or 
levied  upon  this  obligation,  or  upon  the  accompanying  indenture  of  mort- 
gage, or  the  principal  or  interest  moneys  hereby  secured,  immediately  upon 
their  assessment,  without  any  fraud  or  further  delay  ;  then  the  above  obli- 
gation to  be  void,  or  else  to  be  and  remain  in  full  force  and  virtue  : 

Provided,   however,  and  it  is  hereby  expressly  agreed,  that  if  at  any  time 
default  shall  be  made  in  payment  of  interest  as  aforesaid, 
for  the  space  of  days  after  any  payment  thereof 

shall  fall  due,  or  ia  the  payment  of  any  t~x  or  charge,  as  aforesaid,  for 
the  space  of  days  after  notice  in  writing  of  its  assessment 

shall  be  left  upon  the  premises  described  in  the  accompanying  indenture  of 
mortgage,  then  and  in  such  case  the  whole  principal  debt  aforesaid  shall,  at 
the  option  of  the  said  obligee  ,  executors,  administrators,  or  assigns, 

become  due  and  pa3'able  inimediately.  and  payment  of  said  principal  debt, 
and  all  interest  thereon,  may  be  enforced  and  recovered  at  once,  anything 
herein  contained  to  the  contrary  notwithstanding. 

And  Provided  Further,  however,  and  it  is  hereby  expressly  agreed  that 
if  at  any  time  hereaf'er,  by  reason  of  any  default  in  payment,  either  of  said 
principal  sum  at  its  maturity,  or  of  said  interest,  or  of 

taxes  and  charges,  within  the  time  specified,  a  writ  of  fieri  facias  is  properly 
issued  upon  the  judgment  obtained  upon  this  obligation,  or  by  virtue  of  the 
warrant  of  attorney  hereto  attached,  or  a  writ  of  scire  facias  is  properly 


566  MORTGAGES  OF  LAND. 

issued  upon  the  accompanying  indenture  of  mortgage,  an  attorney's  com- 
mission for  collection,  viz.,  per  cent.,  shall  be  payable,  and  shall  be 
recovered  in  addition  to  all  principal,  interest,  and  taxes  then  due,  besides 
costs  of  suit.  And  it  \=,  hereby  declared  and  agreed  that  the  said  debt  or 
principal  sum  of  is  the  same  which,  by  an  inden- 
ture of  mortgage  of  even  date  herewith,  made  between  the  above-named 
obligor     and  obligee     is  secured  upon 

{Signature^     {Seal.) 
Sealed  and  Delivered  In  the  Presence  of  us. 

To  Attorney  of  the  Court  of  Common  Pleas  at 

Philadelphia,  in  the  County  of  Pliiladelphia,  in  the  State  of  Pennsylva- 
nia, or  to  any  other  Attorney  of  the  said  Court,  or  any  other  Court  there 
or  elsewhere. 
Whereas,  in  and  by  a  certain  obligation  bearing  even  date  here- 

with, do         stand  bound  unto  in  the  sum  of 

lawful  money  of  the  United  States  of  America,  conditioned 
for  the  payment  of  the  just  sum  of  lawful 

money  as  aforesaid,  in  together  with  interest 

thereon,  payable  at  the  rate  of  six  per  cent,  per  annum, 

until  such  time  as  a  higher  rate  becomes  lawful,  and  immediately  thereafter 
at  the  highest  rate,  not  exceeding  per  cent,  legally  chargeable.     To- 

gether with  all  taxes  and  charges  in  nature  thereof  that  may  be  laid  or  levied 
upon  said  obligation,  or  upon  the  accompanying  indenture  of  mortgage,  or 
the  principal  or  interest  moneys  thereby  secured,  immediately  upon  their 
assessment ;  it  being  the  same  debt  or  principal  sum  which,  by  an  indenture 
of  mortgage  of  even  date  herewith,  made  between  the  above-named  obli  • 
gor     and  obligee     is  secured  upon 

Provided,  however,  and  it  is  hereby  expressly  agreed,  that  if  at  any 
time  default  shall  be  made  in  payment  of  interest  as  aforesaid, 
for  the  space  of  days  after  any  payment  therecf 

shall  fall  due,  or  in  the  payment  of  any  tax  or  charge,  as  aforesaid,  for  the 
space  of  days  after  notice  in  writing  of  its  assessment 

shall  be  left  upon  the  premises  described  in  the  accompanying  Indenture  of 
Mortgage,  then  and  in  such  case,  the  whole  principal  debt  aforesaid  shall,  at 
the  option  of  the  said  obligee,  executors,  administrators,  or 

assigns,  become  due  and  payable  immediately,  and  payment  of  said  principal 
debt,  and  all  interest  thereon,  may  be  enforced  and  recovered  at  once,  any- 
thing therein  contained  to  the  contrary  notwithstanding. 

And  Provided  Further,  however,  and  it  is  thereby  expressly  agreed, 
that  if  at  any  time  thereafter,  by  reason  of  any  default  in  payment,  either  of 
said  principal  sum  at  its  maturity,  or  of  said  interest 

or  of  taxes  and  charges,  within  the  time  specified,  a  writ  of  fieri  facias  is 
properly  issued  upon  the  judgment  obtained  upon  said  obligation,  or  by  vir- 
tue of  this  warrant,  or  a  writ  of   scire  facias  is  properly  issued  u^Jon  the 


rOR-^fS  OF  MORTGAGES,  ETC.  z^(^j 

accompanyir.g  indenture  of  mortgage,  an  attorney's  commission  for  collec- 
tion, viz.,  per  cent,  shall  be  p.iyable,  and  shall  be  recovered  in  addition 
to  all  principal   interest,  and  taxes  then  due,  besides  costs  of  suit. 

These  are  to  desire  and  authorize  you,  or  any  of  you,  to  appear  for 

heirs,  executors,  or  administrators,  in  the  said  court  or  else- 
where, in  an  action  of  debt  there  or  elsewhere  brought,  or  to  be  brought, 
against  heirs,  executors,  or  administrators  at  the  suit  of  the  said 

oblio'ee  ,  executors,  administrators,  or  assigns,  on  the  said 

obligation,  as  of  anytime  present,  or  any  other  subsequent  term  or  time  else- 
where to  be  held,  and  confess  judgment  thereupon  against  heirs, 
executors,  or  administrators,  for  the  sum  of  lawful 
money  of  the  United  States  of  America,  debt,  besides  costs  of  suit,  and  an 
attorney's  commission  of  per  cent,  in  case  payment  has  to  be  en- 
forced by  process  of  law,  as  aforesaid,  by  noti  sum  informatus,  Nihil  dicit, 
or  otherwise,  as  to  you  shall  seem  meet ;  and  for  your,  or  any  of  your  so 
doing,  this  shall  be  your  sufficient  warrant.  And  do  hereby, 
for  heirs,  executors,  and  administrators,  remise,  release, 
and  forever  quitclaim  unto  the  said  obligee  ,  certain  attorney, 
executors,  administrators,  and  assigns,  all  and  all  manner  of  error  and  errors, 
misprisions,  misentries,  defects,  and  imperfections  whatever,  in  the  entering 
of  the  said  judgment,  or  any  process  or  proceedings  thereon  or  thereto,  ov 
in  anywise  touching  or  concerning  the  same. 

In  "Witness  "Whereof,  have  set  hand     and   seal     thi? 

day  of  in  the  year  of  our  Lord  one  thousand  eighT 

hundred  and 

{Sig7iat2ircs^     {Seals.) 

Sealed  and  Delivered  in  the  Pi'esence  of  7is, 

(182.) 
Mortgage  Deed  in  use  in  Maryland. 

This  Mortgage,  Made  this  day  of  in  the 

year  one  thousand  eight  hundred  and  by  (name, 

residence,  and  ocaipation  of  the  grantor)  of  County,  in 

the  State  of  Maryland,  Witnesseth  : 

"Whereas,  The  said  {name  of  the  mortgagor,  with  his  ocaipation  and 
residence)  has  given  to  {jtatne,  residence,  and  occjipation  of  the  mortgagee) 
his  promissory  note  of  hand  {or  bond)  {here  describe  the  note  or  bottdor  sitnple 
obligation  to  secure  which  this  7nortgage  is  given,  by  date,  amount,  time  of 
payjnent,  and  other  terms,  if  there  are  any). 

Now  this  Mortgage  "Witnesseth,  That  in  consideration  of  the  prem- 
ises, and  of  the  sum  of  one  dollar,  the  said  do 
grant  unto  the  said  in  fee-simple,  all  that  lot, 
tract,  parcel,  or  parcels  of  land  situate  in  the  County  and  State  aforesaid 
{here  describe  with  care  the  lajtd  or  premises  fnortgaged,  as  directed  in 
Forin  107). 


568  MOR TGA  GES  OF  LA ND. 

Together  with  tlie  buildings  and  improvements  thereupon,  and  the  rights, 
ways,  waters,  privileges,  appurtenances,  and  advantages  thereto  belonging, 
or  in  anywise  appertaining. 

Provided,  That  if  the  said  executors,  administrators, 

or  assigns,  shall  well  and  truly  pay  to  the  said 
the  said  sum  of  on  or  before  the 

day  of  one  thousand  eight  hundred  and 

together  with  the  legal  interest  thereon  annually,  and  shall  per- 

form all  the  covenants  herein  on  part  to  be  performed,  then  this 

mortgage  shall  be  void. 

And        the  said  {name  of  the  ino7-tgagor)  do     covenant  and  promise  to 

pay  to  the  said  on  the  day  of 

one  thousand  eight  hundred  and  the 

said  sum  of  together  with  the  legal  interest  thereon 

annually. 

And  the  said  do     hereby  further  covenant 

'hat  in  case  of  any  default  being  made  in  any  condition  of  this  mortgage, 
••nen  the  whole  mortgage  debt  hereby  intended  to  be  secured  shall  be  deemed 
cue  and  demandable. 

And  the  said  do      further  covenant  to 

snsure,  and,  pending  the  existence  of  this  mortgage,  to  keep  insured,  the  im- 
provements on  the  hereby  mortgaged  ground,  to  the  amount  of  at  least 

dollars,  and  to  cause  the  policy  to  be  effected 
thereon  to  be  so  framed  or  indorsed  as,  in  case  of  fire,  to  inure  to  the  bei^efit 
of  the  said  ,  representatives,  or  assigns, 

to  the  extent  of  lien  or  claim  hereunder. 

Witness,  hand      and  seal      the  day  and  year  first  above  written. 

Test  : 

(Names  of  the  witnesses.) 

(Stg7iaticres.)         {Seals.) 

State  of  Maryland,  ") 

V-  To  WIT. ; 
Harford  County,     ) 

I  Hereby  Certify,  That  on  this  day  of  in 

the  year  one  thousand  eight  hundred  and  before  the  sub- 

scriber, a  Justice  of  the  Peace  of  the  State  of  Maryland,  in  and  for  Harford 
County,  aforesaid,  personally  appeared  and 

acknowledged  the  foregoing  mortgage  to  be  act ;  and  now,  at 

the  same  time,  before  me,  personally  appeared  also 

the  within  named  mortgagee  and  made  oath  on  the  Holy  Evangelists  of 

Almighty  God  that  the  consideration  set  forth  in  the  foregoing  mortgage  is 
true  and  bond  fide,  as  therein  stated. 


FORMS  OF  MORTGAGES,  ETC.  55c) 

An  Assignment  of  Mortgage. 

I  hereljy  assign  the  above  or  within  mortgage  to  {the  assignee). 
Witness  my  hand  and  seal,  this  of 

(Signature.)     {Seal.) 

Release  on  Satisfaction  of  a  Mortgage. 

I  hereby  release  the  above  (or  within)  Taoriga.gQ. 
Witness  my  hand  and  seal,  this  day  of 

{Sigtiature.)     {Seal.) 

(183.) 

Mortgage  Deed  to  Secure  a  Bond,  in  use  in  South 
Carolina. 
The  State  of  South  Carolina.  , 

To  all  whom  these  Presents  may  concern,  I  (or  we)  {name,  residence, 
and  occupation  of  grantor  or  grantors),  send  greeting: 

Whereas,         the  said  in  and  by  certain  bond  or 

C'bligation     bearing  date  the  stand  firmly  held  and  bound  unto 

{name  of  grantee)  in  the  penal  sum  of  conditioned  for  the 

l)ayment  of  the  full  and  just  sum  of  as  in  and  by  the  said  bond 

and   condition      thereof,  reference    being   thereunto   had,  will  more   fully , 
appear. 

Now  Know  all  Men,  That         the  said  in  consideration  of  the 

said  debt  and  sum  of  money  aforesaid,  and  for  the  better  securing  the 
payment  thereof  to  the  said  according  to  the  condition     of  the 

said  bond     ,  and  also  in  consideration  of  the  further  sum  of  three  dollars  to 

the  said  in  hand  well  and  truly  paid  by  the  said 

at  and  before  the  sealing  and  delivery  of  these  presents,  the  receipt  whereof 
is  hereby  acknowledged,  have  granted,  bargained,  sold,  and  released,  and  by 
these  presents  do  grant,  bargain,  sell,  and  release  unto  the  said  {desci-ibe 
carefully  the  land  a7id  premises  granted,  substantially  as  directed  in  Form 
107.) 

Together  with  all  and  singular  the  rights,  members,  hereditaments,  and 
appurtenances  to  the  said  premises  belonging,  or  in  anywise  incident  01 
appertaining. 

To  Have  and  to  Hold  all  and  singular  the  said  premises  unto  the  said 
heirs  and  assigns  forever.     And         do  hereby  bind  heirs, 

executors,  and  administrators,  to  warrant  and  forever  defend  all  and  singular 
the  said  premises  unto  the  said  heirs  and  assigns,  from  and 

against  heirs,  executors,  administrators,  and  assigns, 

lawfully  claiming,  or  to  claim  the  same,  or  any  part  thereof. 

And  it  is  agreed,  by  and  between  the  said  parties,  that  the  said  mortgagor, 

heirs,  executors,  or  administrators,  shall  and  will  forthwith  insure  the 

house  and  buildings  on  said  lot,  and  keep  the  same  insured,  from  loss  or 


S70 


MORTGAGES  OF  LAND. 


damage  by  fire,  and  assign  llie  policy  of  insurance  to  the  said 
executors,  administrators,  or  assigns  ;  and  iij  case  he  or  they  shall  at  any 
time  neglect  or  fail  so  to  do,  then  the  said  mortgagee,  execu- 

tors, administrators,  or  assigns,  may  cause  the  same  to  be  insured  in  their 
own  name,  and  reimburse  themselves  for  the  premium  and  expense  of  such 
insurance  under  the  mortgage. 

Provided  Always,  nevertheless,  and  it  is  the  true  intent  and  meaning  of 
the  parties  to  these  presents,  that  if  the  said  do  and  shall  v.-ell 

and  truly  pay,  or  cause  to  be  paid,  unto  the  said  the  said  debt 

or  sum  of  money  aforesaid,  with  the  interest  thereon,  if  any  shall  be  due, 
according  to  the  true  intent  and  meaning  of  said  bond  and  condition  there- 
under written,  then  this  deed  of  bargain  and  sale  shall  cease,  determine,  and 
be  utterly  null  and  void,  otherwise  it  shall  remain  in  full  force  and  vigor. 

And  it  is  agreed,  by  and  between  the  said  parties,  that  to  hold  ai^d 

enjoy  the  said  premises  until  default  of  payment  shall  be  made. 

Witness  hand     and  seal     this  day  of  ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  and  in  the 

year  of  the  sovereignty  and  independence  of  the  United  States 
of  America. 

{Signatures.)     {Seals.) 

Signed,  Sealed,  and  Delivered  in  the  Prese7ice  of, 

State  of  South  Carolina,         ^ 

>•  ss. 
County.  ) 

Personally  appeared  before  me,  and  made  oath,  that 

saw  the  within  named  sign,  seal,  and  as  act  and  deed,  deliver 

the  within  written  deed :  and  that  with  witnessed  thft 

execution  thereof. 

Sworn  to  before  me  this  day  of  i8 

{Signature.) 

State  of  South  Carolina,         ) 

y  Renunciation  of  Dower. 
County.) 

I,  do  hereby  certify  unto  all  whom  it  may  concern,  that         wife  of 

the  within  named  did  this  day  appear  before  me,  and  upon  being  privately  and 
separately  examined  by  me,  did  declare  that  she  does  freely,  voluntarily,  and 
without  any  compulsion,  dread,  or  fear  of  any  person  or  persons  whomsoever, 
renounce,  release,  and  forever  relinquish  unto  the  within  named  heirs  and 

assigns,  all  her  interest  and  estate,  and  also  all  her  right  and  claim  of  dower, 
of,  in,  or  to  all  and  singular  the  premises  within  mentioned  and  released. 

Given  under  my  hand  and  seal,  this  day  of  Anno 

Domini  i8 

{Signature^ 


FORMS  OF  MORTGAGES,  ETC.  571 

(184.) 

Mortgage  Deed  with  Power  of  Sale,  to  Secure  Debt,  in 
use  in  Georgia. 

Georgia,  } 

County.  3 

This  Indenture,  Made  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

{name  and  occtipation  of  grantor  or  grantors)  of  the  County  of  of 

the  one  part,  and  {itaiue  and  occupation  of  grantee  or  grantees)  oi  the  County 
of  of  the  other  part : 

Witnesseth,  That  the  said  for  and  in  consideration  of 

the  sum  of  in  hand  paid,  at  and  before  the  sealing  and  delivery 

of  these  presents,  the  receipt  whereof  is  hereby  acknowledged,  ha    granted, 
bargained,  sold,  aliened,  conveyed,  and  confirmed,  and  by  these  presents 
do     grant,  bargain,  sell,  aliene,  convey,  and  confirm  unto  the  said 
heirs  and  assigns,  all  {here  describe  the  land  or  premises  granted,  substan- 
tially as  directed  in  Form    107). 

To  Have  and  to  Hold  the  said  with  all  and  singular  the  rights, 

members,  and  appurtenances  thereunto  appertaining,  to  the  only  proper  use, 
benefit,  and  behoof  of  the  said  heirs,  executors,  admin- 

istrators, and  assigns,  in  fee-simple  ;  and  the  said  the  said  bargained, 

unto  the  said  heirs,  executors,  administrators,  and  assigns, 

against  the  said  heirs,  executors,  and  administrators,  and  against  aU 

and  every  other  person  or  persons,  shall  and  will  warrant  and  forever  defend 
by  virtue  of  these  presents. 

And  the  said  hereby  agrees  that  if  the  debt  to  secure 

which  this  deed  is  made  is  not  promptly  paid  at  maturity  according  to  thf; 
tenor  and  effect  of  the  said  made  at  the  execution  of  this  deed,  then 

the  said  may,  and  by  these  presents  authorized  to  sell  i\t 

public  outcry  to  the  highest  bidder,  for  cash,  all  of  said  property,  or  a  suffi- 
ciency thereof  to  pay  said  indebtedness  with  the  interest  thereon  and  the 
costs  of  the  proceeding,  after  advertising  the  time,  place,  and  terms  of  sale 
in  newspaper  for  days.     And  the  said  may 

make  to  the  purchaser  or  purchasers  of  said  property  good  and  sufficient 
titles  in  fee-simple  to  the  same,  thereby  divesting  out  of  the  said 
all  right,  title,  and  equity  that  may  have  in  and  to  said  property,  and 

vesting  the  same  in  the  purchaser  or  purchasers  aforesaid.  The  proceeds  cf 
said  sale  are  to  be  applied  first  to  the  payment  of  the  said  debt  and  interest 
and  the  expenses  of  this  proceeding,  the  remainder,  if  any,  paid  to 

In  Witness  Whereof,  The  said  and  his  wife,  who 


572  MORTGAGES  OF  LAND. 

hereby  consents  to  tlie  execution  of  this  deed,  have  hereunto  set  their  hands 
and  affixed  their  seals,  and  delivered  these  presents,  the  day  and  year  first 
above  written. 

{Signatures.)        {Seals) 
Signed,  Sealed,  and  Delivet'ed  in  Presence  of  us 

(185.) 
Mortgage  to  Secure  a.  Promissory  Note,  in  use  in  Kansas. 

This  Indenture,  Made  this  day  of  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  between  {na7ne  and  occu- 

pation of  grantor  or  grantors)  of  in  the  County  of  {residence')  and 

State  of  ,  of  the  first  part,  and  {name,  residence,  and  occupation 

of  grantee  or  grantees)  of  the  second  part :  witnesseth,  that  the  said  part 
of  the  first  part,  in  consideration  of  the  sum  of  dollars,  to 

duly  paid,  the  receipt  of  which  is  hereby  acknowledged,  ha  sold,  and  by 
these  presents  do  grant,  bargain,  sell,  and  mortgage  to  the  said  part  of  the 
sicond  part,  heirs  and  assigns  forever,  all  that  tract  or  parcel  of  land 

s  tuate  in  the  County  of  and  State  of  Kansas,  described  as  follows, 

to  wit:  {here  describe  accurately  the  land  or  premises  granted,  stibstantially 
3.1  directed  i7i  Form  107),  with  the  appurtenances,  and  all  the  estate,  title,  and 
interest  of  the  said  part     of  the  first  part  therein. 

This  grant  is  intended  as  a  mortgage  to  secure  the  payment  of  the 
vam  of  dollars,   according  to  the  terms  of  certain 

.  And  this  conveyance  shall  be  void  if  such  paym.ent  be  made 
as  is  herein  specified.  But  if  default  be  made  in  said  payment,  or  any  part 
thereof,  as  provided,  then  this  conveyance  shall  become  absolute,  and  it  shall 
be  lawful  for  said  part     of  the  second  part,  executors,  admuiistrators, 

and  assigns,  at  any  time  thereafter,  to  sell  the  premises  hereby  granted,  or 
any  part  thereof,  in  the  manner  prescribed  by  law  ;  and  out  of  all  the  moneys 
arising  from  such  sale,  to  retain  the  amount  then  due  for  principal  and 
interest,  and  also  for  statutory  damages  in  case  of  protest,  together  with  the 
costs  and  charges  of  making  such  sale,  and  per  cent,  on  the 

amount  secured  by  this  mortgage,  as  a  reasonable  attorney's  fee  for  fore- 
closure hereof,  and  the  overplus,  if  any  there  be,  shall  be  paid  by  the  part 
making  such  sale,  to  the  said  heirs  or  assigns  ;  and  for  the  said 

consideration,  the  said  part  of  the  first  part  hereby  waive  appraisement  of 
said  real  estate. 

In  "Witness  "Whereof,  The  said  part     of  the  first  part  ha     hereunto  set 
hand     and  seal     the  day  and  year  last  above  written. 

{Signatures)     {Seals.) 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 

State  of  Kansas,  ■) 

>■  ss. 
County  of  ) 

Be  it  Remembered,  that  on  this  day  of  A.D.  18 

before  me,  in  and  for  said  County  and  State,  came  to 


FORMS  OF  MORTGAGES,  ETC.  573 

me  personally  known  to  be  the  same  person  who  executed  the  foregoing 
instrument,  and  acknowledged  the  execution  of  the  same. 

In  "Witness  Whereof,  I  have  hereunto  subscribed  my  name  and  affixed 
my  official  seal  on  the  day  and  year  last  above  written. 

{Signature.)    {Seal.) 

(186.) 

Mortgage  Deed  in  use  in  Missouri. 

Know  all  Men  by  these  Presents,  That  {}ia»ie  and  occupation  of  the 
grantor  or  mortgagor  and  his  wife)  of  the  County  of  ,  in  the  State 

of  Missouri,  ha     this  day,  for  and  in  consideration  of  the  sum  of 
dollars  to  the  said  in  hand  paid,  by  {name  and  occupation  of  mortgagee) 

of  the  County  of  in  the  State  of  ,  the  receipt  whereof  is  hereby 

acknowledged,  granted,  bargained,  and  sold,  and  by  these  presents  do  grant, 
bargain,  and  sell  unto  the  said  the  following  described  tracts  or 

parcels  of  land,  situate  in  the  County  of  ,  in  the  State  of  Missouri, 

that  is  to  S2iy{here  describe  the  premises  mortgaged  as  directed  in  Form  107). 

To  Have  and  to  Hold  the  premises  hereby  conveyed,  with  all  the  rights, 
privileges,  and  appurtenances  thereto  belonging,  or  in  anywise  appertaining 
unto  the  said  heirs  and  assigns  forever,  upon  this  express  condition  : 

Whereas,  the  said  on  the  day  of  18     ,  mad'?, 

executed,  and  delivered  to  the  said  certain  promissory  note     ,  in 

words  and  figures  following,  to  wit : 

Now,  if  the  said  executor  ,  or  administrator  ,  shall  pay  the 

sum  of  money  specified  in  said  note,  and  all  the  interest  that  may  be  due 
thereon,  according  to  the  tenor  and  effect  of  said  note,  then  this  conveyance 
shall  be  void ;  otherwise,  it  shall  remain  in  full  force  and  virtue  in  law,  and 
the  said  or  executor  ,  or  administrator   may  proceed  to  sell  the 

property  hereinbefore  described,  or  any  part  thereof,  at  public  vendue,  to  the 
highest  bidder,  at  in  the  County  of  for  cash  in  hanri, 

first  giving  days'  public  notice  of  the  tim.e,  terms,  and  place  of  sah:, 

and  of  the  property  to  be  sold,  by  advertisement  ;  and  upon  such 

sale,  and  the  payment  of  the  purchase  money,  shall  execute  and  deliver  a 
conveyance  of  the  property  so  sold  to  the  purchaser  thereof ;  and  any  state- 
ment of  fact  or  recital  by  the  said  in  such  conveyance,  in 
relation  to  the  advertisement,  sale,  receipt  of  the  purchase  money,  or  execu- 
tion of  said  conveyance,  shall  be  received  as  prima  facie  evidence  of  the 
truth  thereof,  and  the  said  shall,  with  the  proceeds  of  the  sale 
aforesaid,  pay,  first,  the  expenses  of  this  trust,  and,  next,  whatever  may  be 
in  arrear  and  unpaid  on  said  note,  whether  of  principal  or  interest,  and  the 
balance  (if  any)  shall  be  paid  over  to  the  said  or  his  legal  repre- 
sentatives. 

In  Witness  Whereof,  have  hereunto  subscribed  name  ,  and 

affixed        seal      this  day  of  iS 

{Signatures.)     {Seals.) 


574  MOR  TGA  GES  OF  LA  ND. 

State  of  Missouri, 


ss. 
County  of 

On  this  day  of  i8     ,  before  me  personally  appeared 

to  me  well  known  to  be  the  person     described  in 
and  who  executed  the  foregoing  instrument,  and  acknowledged  that 
executed  the  same  as  free  act  and  deed.     And  the  said 

further  declare  to  be  single  and  unmarried. 

In  Testimony  Whereof,   I  have  hereunto  set  my  hand  and  affixed  my 
official  seal,  at  my  office  in  the  day  and  year  first  above 

written. 

My  term  expires  i8    . 

{Signature)  {Seal.) 

{Official  designation.) 

(187.) 

Short  Deed  of  Mortgage  in  use  in  Indiana. 

This  Indenture  Witnesseth :  That  I  {itame  and  ocaipation  of  grantor 
Ar  grantors)  of  {residence)  County,  in  the  State  of  do  hereby  mortgage 

and  warrant  to  {name  and  occjtpation  of  grantee  or  grafitees)  of  {residence) 
County,  in  the  State  of  the  following  real  estate,  in  County, 

ii  the  State  of  Indiana,  to  wit:  {here  describe  the  land  or  pretnises  gra7ited 
substantially  as  directed  in  For77t  107),  to  secure  the  payment  when 
become  due  of  and  the  mortgagor    expressly  agree     to  pay  the 

sum  of  money  above  secured,  without  relief  from  valuation  laws. 

In  Witness  Whereof,  The  mortgagor    ha    hereunto  set        hand    and 
seal    this  day  of  A.D.  18 

{Signatures.)        {Seals.) 
State  of  Indiana,  ^ 

County.  ) 
Before  Me,  a  in  and  for  said  County,  this 

day  of  ,  18     ,  acknowledged  the  execution  of  the 

annexed  mortgage. 

Witness  my  hand  and  seal,  this  day  of  ,18 

{Signature.)        {Seal.) 

(188.) 

Mortgage  without  Release  of  Dower  or  Homestead,  in  use 

in  Wisconsin. 

This  Indenture,  Made  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  between  {name 

and  occupation  of  grantor  or  grantors)  of  the  County  of  State 

o£  of  the  first  part,  and  (^latne  and  occupation  of  the  grantee  or 


FORMS  OF  MORTGAGES,  ETC.  575 

grantees)  of  the  County  of  and  State  of  of  the  second 

part,  witnesseth,  that  the  said  part  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  dollars  to  in  hand  paid  by  the  part    of  the 

second  pnrt,  the  receipt  of  which  is  hereby  acknowledged,  ha  granted, 
bargained,  and  sold,  and  by  these  presents  do  grant,  bargain,  sell,  and 

convey  unto  the  said  part  of  the  second  part,  and  to  heirs  and  assigns 
forever,  all  the  following  described  real  estate  situate,  lying,  and  being  in 
the  County  of  State  of  and  known  as  being  {here 

describe  with  sufficient  care  the  land  or  premises  granted,  substantially  as 
directed  in  Form  107). 

To  Have  and  to  Hold  the  above  bargained  premises  with  the  appurte- 
nances, unto  the  said  part  of  the  second  part,  heirs  and  assigns  forever, 
Provided  always,  and  these  presents  are  upon  this  express  condition,  that  if 
the  said  part     of  the  first  part,         heirs,  executors,  adminis- 

trators, and  assigns,  shall  well  and  truly  pay,  or  cause  to  be  paid,  to  the  said 
part     of  the  second  part,  heirs,  executors,  administrators,  or  assigns 

the  sum  of  according  to  the  condition  of  certain 

bearing  date  executed  by  the 

said  part  of  the  first  part,  to  the  said  part  of  the  second  part,  as  collateral 
securitv,  then  these  presents  and  the  said  shall  cease  and  be  null 

and  void. 

And  the  said  do      further  covenant  and  agree,  that 

wnll  pay  all  taxes  and  assessments  of  every  nature  that  may 
be  assessed  on  said  premises,  previous  to  the  day  appointed  in  pursuance  of 
any  law  of  the  State  for  sale  of  lands  for  taxes.  And  also  will  pay  the  sum 
of  dollars,  as  Solicitor's  fees,  in  case  of  foreclosure  of  this 

mortgage,  by  reason  of  the  non-performance  of  any  of  the  conditions 
hereof  by  said  part  of  the  first  part.  And  in  case  of  the  non-payment 
of  said  sum,  or  any  part  thereof,  at  the  time  or  times  above  limited  for  the 
payment  thereof,  or  in  case  of  the  non-payment  of  any  taxes  that 
may  be  assessed  on  said  premises  in  manner  aforesaid ;  then,  and  in  either 
case,  it  shall  be  lawful  for  the  said  part       of  the  second  part,  heirs, 

executors,  administrators,  or  assigns,  and  the  said  part  of  the  first  part, 
do  hereby  covenant  and  agree,  and  by  these  presents  empower  and  author- 
ize the  said  part  of  the  second  part,  heirs,  executors,  administrators,  or 
assigns,  to  grant,  bargain,  sell,  release,  and  convey  the  said  premises,  with 
the  appurtenances  thereunto  belonging,  at  public  auction  or  vendue,  and  on 
such  sale  to  make  and  execute  to  the  purchaser  or  purchasers,  his,  her,  or 
their  heirs  and  assigns  forever,  good,  ample,  and  sufficient  deeds  of  convey- 
ance in  the  law,  pursuant  to  the  statute  in  such  cases  made  and  provided ; 
and  out  of  the  moneys  arising  from  such  sale  to  retain  the  principal  and 
interest  which  shall  then  be  due  on  the  said  together  with  the 

costs  and  charges,  and  the  said  sum  of  dollars,  Solicitor's 

fees,  as  aforesaid ;  rendering  the  surplus  money,  if  any  there  be,  to  the 
part  of  the  first  part,  heirs,  executors,  administrators,  or  assigns,  after 
deducting:  the  costs  of  such  vendue  as  aforesaid. 


576  MORTGAGES  OF  LAND. 

In  "Witness 'Whereof,  the  Sciid  part      cf  the  first  part  ha      hereunto  set 
hand    and  seal    ,  the  day  and  year  first  above  written. 

{Signatures^     {Seals.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  ) 

)-  ss. 
County  of  y 

Be  it  Hemembered,  That  on  the  day  of  i8      , 

personally  came  before  me  the  above  named  to  me  known 

to  be  the  person  who  executed  the  forc^^oing  mortgage,  and  acknowledged 
execution  thereof  to  be  free  act  and  deed,  for  the  uses  and  purposes 

therein  mentioned. 

{Signature^     {Seal.) 
(189.) 

Mortgage  Deed,  with  Release  of  Homestead  and  Do^wer, 

to  Secure  the  Payment  for  Premises  Sold, 

in  use  in  lo'wa. 

linow  all  Men  by  tliese  Presents,  That  ( here  insert  name  and  occupa- 
tion of  grantor  or  grafttors)  of  County  and  State  of 
in  consideration  of  the  sum  of  dollars,  in  hand  paid,  do  hereby 
sell  and  convey  unto  {name  and  occupatio7t  of  grantee  or  grantees)  of 
County  and  State  of  the  following  described  real  estate,  situated 
in  the  County  of  and  State  of  to  wit  :  {here  describe 
carefully  the  land  or  premises  granted,  substantially  as  directed  in  Form 
107),  containing  acres,  more  or  less,  and  hereby  release 
all  rioht  of  homestead  and  dower  interest  therein,  and  warrant  the 
title  thereto  against  the  lawful  claim  of  all  persons  whomsoever. 

The  above  sale  and  conveyance  is  however  made  upon  the  following 
express  conditions  :  That  if  shall  pay  or  cause  to  be  paid  the 

sum  of  dollars,  according  to  the  tenor  and  effect  of 

certain  promissory  note    ,  described  as  follows  : 

bearing  even  date  herewith  and  payable  to  the  order  of  said  with 

interest  thereon  from  at  tlie  rate  of  per  cent,  per  annum, 

payable  annually,  then  the  above  sale  and  conveyance  shall  be  void, 

but  that  otherwise  it  shall  be  and  remain  in  full  force  and  effect. 

And  also  agree  that  the  failure  to  pay  promptly  when  due  any 

part  of  the  moneys  hereby  secured,  or  any  interest  accruing  thereon, 
according  to  the  terms  of  said  promissory  note  ,  or  allowing  any  taxes 
assessed  upon  any  part  of  the  premises  above  described  to  become 
delinquent  and  remain  unpaid,  or  permitting  said  premises  or  any  part 
thereof  to  be  sold  for  taxes,  shall  cause  the  entire  principal  sum  hereby 
secured,  and  all  interest  accrued  thereon,  to  become  immediately  due  and 
pavable,  and  the  said  may  thereupon  proceed  at  once  to  fore- 

close this  mortgage  for  such  entire  principal  sum,  accrued  interest  and  costs. 

And  further  agree  in  case  of  such  foreclosure  to  pay  a  reasonable 


FORMS  OF  MORTGAGES,  ETC.  ^yy 

sum  as  attorney's  fee,  to  be  by  tlie  court  fixed  and  determined,  for  fore- 
closing tlie  same,  which  fee  shall  be  included  in  the  judgment  in  such  fore- 
closure case.  This  mortgage  is  given  to  secure  tlie  purchase  money  of  the 
prem'ses  hereinbefore  describecf,  and  creates  a  lien  for  purchase  money 
upon  said  premises  in  favor  of  said  mortgagee. 

Dated  this  day  of  A.D.  i8     . 

{Signaitires.)       (Seals.) 
State  of  Iowa,  > 

>-  ss. 
County,  ) 

Be  it  Remembered,  That  on  this  day  of  A.D.     , 

before  the  undersigned,  a  within  and  for  said  County,  personally 

appeared  personally  known  to  me  to  be  the  identical  person 

whose  name  affixed  to  the  above  mortgage,  as  grantor    thereto, 

and  acknowledged  tlie  execution  of  the  same  to  be  voluntary  act  and 

deed. 

"Witness  my  hand  and  seal. 

{Signature.)    {Seal.) 
(190.) 

Mortgage  Deed  in  use  in  Lonisiana. 
[This  being  a  peculiar  deed,  presenting  some  unusual  difficulties  in  filling 
up  the  blanks,  it  is  thought  best  to  give  a  full  copy  of  a  carefully-prepared 
deed,  as  the  same  was  drawn  and  executed  in  accordance  with  the  \<x\\  of 
Louisiana.] 

ST.A.TE  OF  Louisiana, 


Parish  and  City  of  New  Orleans. 

Be  it  Known,  That  on  this  third  day  of  ytene,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  seventy  and  of  the  independence  of  the 
United  States  of  America,  the  ninety-fourth. 

Before  Me.  Andrew  Hero,  Jr.,  a  Notary  Public  in  and  for  the  Parish  and 
City  of  New  Orleans,  State  of  Louisiana,  duly  commissioned  and  qualified, 
and  in  the  presence  of  the  witnesses  hereinafter  named  and  undersigned, 

Personally  Came  and  Appeared, — Atttonio  Corbett,  of  this  city,  who 
declared  that  he  is  justly  and  truly  indebted  unto  James  Thompson,  also  of 
this  city,  in  the  sum  of  eight  hundred  dollars,  borrowed  money  this  day  had  : 
in  settlement  and  as  evidence  thereof  the  said  Antonio  Corbett  has  made  and 
furnished  his  promissory  note  for  like  sum  of  eight  hundred  dollars,  drawn 
to  the  order  of  and  indorsed  by  himself,  dated  this  day,  and  made  payable  i.t 
twelve  months  after  date,  w'th  interest  at  the  rate  of  eight  per  cent,  per 
annum,  from  and  after  maturity,  if  not  then  paid,  until  final  payment,  which 
said  note,  after  having  been  paraphed  by  me,  the  said  Notary,  to  identify  //, 
herewith,  was  delivered  to  the  said  Thompson,  who  hereby  acknowledges  the 
receipt  thereof. 

Now,  in  order  to  secure  the  full  and  punctual  payment  of  the  said  note^ 
37 


5/8  MORTGAGES  OF  LAND. 

in  cajMtal  and  interest,  at  maturity,  t!ie  said  Corbetf  moreover  declared  that 
he  docs  by  these  presents  specially  mortgage  and  hypothecate  in  favor  of  the 
said  James  Thoiiipson.,  his  heirs  and  assiirns,  and  of  any  and  all  such  person 
or  persons  as  may  hereafter  be  the  hoLicfr  or  holders  of  the  said  note,  the 
following  described  property,  to  wit : 

A  certain  lot  of  ground,  together  loitJt  the  buildings  and  ivifrovements  thereon,  and 
all  rights  and  privileges  thereto  belonging,  siitcate  in  the  Fattboiirg  Lafayette,  Fonrth 
District  of  this  city,  in  the  sqjiare  niivibered  two  hundred  and  eighty  five,  which  is 
bounded  by  Liberty  {late  Ellen),  Josephine,  St.  Andrew  {formerly  Gormley^s  Canal), 
and  Franklin  {late  Ftdton  Azenue)  streets,  and  designated  as  lot  inimber  six  oji  a  plan 
of  the  former  city  of  Lafayette,  and  a  sketch  drawn  by  Lfngh  Grant,  surveyor,  tinder 
date  of  the  l^f^i  of  March,  1848,  and  annexed  for  reference  to  an  act  passed  before  L. 
R.  Kenny,  late  a  N'otajy  in  said  parish  of  Jefferson,  which  said  lot  measures,  in  Ameri- 
can measure,  fwenty-seven  feet  front  on  said  Liberty  {late  Ellen)  street,  by  one  htindred 
and  twenty  feit  in  depth,  between  parallel  lines,  being  the  same  property  which  said 
mortgagor  actpiired  by  purchase  from  the  widow  and  heirs  of  Henry  Alumford,  by  an 
act  passed  before  William  Shannon,  a  N'otary  in  this  city,  on  the  12th  day  of  March, 
tighteen  hundred  and  sixty-seven. 

The  said  property  is  so  to  remain  mortgaged  and  hypothecated  until  the  full 
and  final  payment  of  the  aforesaid  note  in  capital  and  interest;  the  said  mort- 
gagor hereby  binding  himself  and  ]iis  heirs  not  to  alienate,  deteriorate,  nor 
encumber  the  same  to  the  prejudice  of  these  presents,  which  are  accepted  by 
said  mortgagee. 

And  the  said  Corbctt  further  declared  that  lie  ^ocs  by  these  presents  bind 
and  obligates  hifnselfio  cause  all  and  singular  the  buildings  and  improvements 
on  the  lot  of  grojind zioxz  described,  to  be  insured  and  kept  insured  against  the 
risk  of  fire,  by  one  of  the  insurance  companies  of  this  city,  in  the  sum  of  07ie 
th oil sajid  dollars,  until  the  full  and  final  payment  of  the  afore  described  note, 
and  to  transfer  and  deliver  unto  the  said  mortgagee  the  policy  or  policies  of 
such  insurance  or  insurances  ;  indefault  whereof,  said  mortgagee,  and  any  and 
all  holders  of  said  note,  is  and  are  hereby  authorized  to  cause  such  insurance  or 
insurances  to  be  made  and  effected  at  the  cost,  charge,  and  expense  of  the 
said  mortgagor.  But  this  clause  shall  not  be  construed  as  obligatory  on  such 
holder  or  holders,  or  as  making  them  liable  for  any  loss,  damage,  or  injury 
which  may  result  from  the  non-insurance  of  the  said  buildings. 

And  the  said  mortgagor  further  declared  that  he  d^oes  by  these  presents 
consent,  agree,  and  stipulate  that  in  the  event  of  the  said  note  not  being 
punctually  paid  at  maturity,  it  shall  be  lawful  for  and  he  does  hereby  author- 
ize the  said  mortgagee,  or  any  other  holder  or  holders  thereof,  to  cause  all 
and  singular  the  property  hereinbefore  described,  and  herein  mortgaged,  to 
be  seized  and  sold  under  executory  process  (issued  by  any  competent  court) 
without  appraisement,  to  the  highest  bidder,  payable  in  cash  ;  the  said  mort- 
gagor herein  expressly  dispensing  with  all  and  every  appraisement  thereof, 
and  by  these  presents  waiving  and  renouncing  the  benefit  of  appraisement, 
and  of  all  laws  or  parts  of  laws  relative  to  the  appraisement  of  movable  or 
immovable  effects,   etc.,   seized  and  sold  under  executory  or  other    legal 


FOJ^J/S  OF  MOETGAGES,  ETC.  ^-^ 

process,  the  said  mortgagor  hereby  confessing  judgment  in  favor  of  said 
mortgagee,  and  such  person  or  persons  who  may  be  the  holder  or  holders  of 
said  note  for  the  full  amount  thereof,  capital  and  interest,  together  with  all 
costs,  charges,  and  expenses  whatsoever. 

And  the  said  mortgagor  further  declares  that  he  does,  by  these  presents, 
bind  and  ohWg'iit  himself  and  his  heirs  to  pay  and  reimburse  unto  said  mort- 
gagee, and  such  person  or  persons  as  may  be  the  holder  or  holders  of  said 
note,  all  such  lawyer's  or  attorney's  fees,  together  with  all  such  costs,  charges, 
and  expenses  as  said  mortgagee,  or  any  such  holder  or  holders,  shall  or  may 
incur  or  pay,  in  the  event  of  the  non-payment  of  said  note  at  maturity  :  said 
attorney's  fees,  however,  to  be  fixed  at  Jive  per  cent,  on  the  amount  so  in 
suit. 

Now,  to  secure  the  faithful  performance  of  the  foregoing  obligation,  and 
the  reimbursement  and  payment  of  the  said  lawyer's  or  attorney's  fees, 
costs,  charges,  and  expenses  aforesaid,  and  the  reimbursement  and  payment 
of  all  premium  or  premiums  as  shall  be  paid  by  the  said  mortgagee,  or  any 
holder  or  holders  of  the  aforesaid  note,  in  causing  insurance  to  be  effected, 
on  default  of  said  mortgagor  as  aforesaid,  the  said  mortgagor,  by  these 
presents,  further  specially  mortgages  and  h)-pothecates  the  hereinbefore 
described  property  unto  and  in  favor  of  said  mortgagee,  and  all  holders  of 
said  note. 

According  to  ike  annexed  certificate  of  the  Recorder  of  mortgages  in  and  for  this 
city  and  parish,  of  even  date  herewith,  the  afore  described  property  is  free  from  all 
mortgages  or  other  incumbrances  in  the  name  of  said  Corbett,  save  the  privilege  for 
draitmge,  and  the  mortgage  "which  he  granted  in  favor  of  his  vendors  by  his  said  act  of 
purchase,  to  secure  the  payment  of  three  hundred  dollars  and  interest.  And  here  the 
said  Campbell  declared,  that  as  last  holder  and  owner ,  he  has  received paymejit  infidl, 
at  the  execution  hereof,  of  a  certain  promissory  note  for  the  sum  of  three  hundred  dol- 
lars, drawn  by  said  Corbett,  to  the  order  of  and  indorsed  by  himself,  dated  the  twelfth 
day  of  March,  eighteen  Juindred  and  sixty-seven,  and  made  payable  at  tivelve  inonths 
after  date,  with  interest  at  the  rate  of  eight  per  cent,  per  annum  from  date  untd  final 
payment :  Said  note  rep)-esenting  the  amount,  payment  of  which  is  secured  by  the  above 
recited  special  mortgage :  and  said  Campbell  moreover  declared  that  in  consideration  of 
the  payment,  he  hereby  cancels  and  anmds  said  mortgage,  and  authorizes  and  requires 
the  Recorder  of  Mortgages  in  and  for  this  parish  to  erase  the  inscription  thereof  from 
his  books :  Said  note  was  defaced  and  cancelled  by  me.  Notary,  at  the  execution 
hereof. 

And  now  to  these  presents  personally  came  and  appeared  Madam  Mary 
Corbett,  the  wife,  of  lawful  age,  of  the  said  Antonio  Co?-bett,  who,  after  hav- 
ing taken  cognizance  of  the  foregoing  act,  which  I,  the  said  Notary,  care- 
fully read  and  explained  to  her,  declared  and  said  that  she  approves  and  rat- 
ifies the  same,  and  that  it  is  her  wish  and  intention  to  release  in  favor  of  the 
said  mortgagee  the  property  herein  described  from  the  matrimonial,  dotal, 
paraphernal,  and  other  rights,  and  from  any  claims,  mortgages,  or  privileges 
to  which  she  is  or  may  be  entitled,  whether  by  virtue  of  her  marriage  with 
her  said  husband  or  otherwise. 


58o  MORTGAGES  OF  LAND. 

■Whereupon  I,  the  said  Notary,  did  inform  the  said  Mrs.  Corbett,  apart 
and  out  of  the  presence  and  hearing  of  her  husband,  that  by  the  laws  of  this 
State,  the  wife  has  a  legal  mortgage  on  the  property  of  her  husband  :  First, 
for  the  restitution  of  her  dowry,  and  for  the  reinvestment  of  the  dotal 
property  sold  by  her  husband,  and  which  she  brought  in  niarriaLe,  reckon- 
ing from  the  celebration  of  the  marriage.  Secondly,  for  the  rcsitut'on  and 
reinvestment  of  the  dotal  properly  by  her  acquired  since  marriage,  whether 
by  succession  or  donation,  from  the  day  the  succession  was  opened,  or  the 
donation  perfected.  Thirdly,  for  nuptial  presents.  Fourthly,  for  debts 
by  her  contracted  with  her  husband.  And  fifthly,  for  the  amount  of  hef 
paraphernal  property  alienated  by  her,  and  received  by  her  husband,  or  oth- 
erwise disposed  of  for  his  individual  interest :  That  in  making  /ler  intended 
renunciation  she  would  deprive  herself  irrevocably  and  forever  of  all  rights 
of  reclamation  against  the  property  herein  described,  whether  under  mort- 
gage privilege,  or  otherwise. 

And  the  said  Mrs.  Corbett  did  thereupon  declare  unto  me.  Notary,  that 
she  was  fully  aware  of  and  acquainted  with  the  nature  and  extent  of  the 
matrimonial,  dotal,  paraphernal,  and  other  rights  and  privileges  thus  secured 
to  her  by  law  on  the  property  of  her  said  husband,  and  that  she  neverthe- 
less  did  persist'in  her  intention  of  renouncing,  and  does  formally  renounce, 
not  only  all  the  rights,  claims,  and  privileges  hereinbefore  enumerated  and 
described,  but  all  others  of  any  nature  and  kind  whatever,  to  which  she  i."?, 
or  maybe,  entitled  by  any  laws  now  or  heretofore  in  force  in  the  State  of 
Louisiana. 

And  the  said  A ntom'o  Corbett  being  now  present,  aiding,  and  authorizing 
the  said  Mrs.  Corbett  in  the  execution  of  these  presents,  she,  the  said  Mrs. 
Corbett,  did  again  declare  that  she  did  and  does  hereby  make  a  formal  renun- 
ciation and  relinquishment  of  all  her  said  matrimonial,  dotal,  paraphernal, 
and  other  rights,  claims,  and  privileges,  in  favor  of  said  mortgagee,  binding 
herse/f  znd  her  heirs  at  all  times  to  sustain  and  acknowledge  the  validity  df 
this  renunciation. 

Thus  Done  and  Passed,  in  my  ofiice  at  New  Orleans  aforesaid,  in  the 

presence  of  Paul  A.  Roberts  and  George  Benson,  witnesses,  both  of  this  city, 

who  hereunto  sign  their  names  with  the  parties,  and  me,  the  said  Notary, 

the  day  and  date  aforesaid,  said  Mistress  Corbett  not  knowing  how  to  write 

or  sign  het  name,  having  hereto  made  her  tnark,  after  the  same  had  been 

read  and  explained  to  her  by  rne.  Notary. 

Original  sighted  : 

her 

fas.  Campbell,  Mary  X  Corbett., 

mark. 
Geo.  Bay  ley,  Antonio  Corbett, 

P.  A.  IVinsor. 
{Seal)  Andi-ew  Hero,  Jr.,  Notary  Public. 

A  trite  copy  of  the  original,  on  file,  and  of  record  in  my  office. 

Andrew  Hero,  Jr.,  Not.  Pub. 
New  Orleans,  La.^  Maixh  31,  1S73. 


FORMS  OF  MOR TGA GES,  ETC.  581 

(191.) 
Satisfaction  of  Mortgage,  in  use  in  New  Jersey. 
State  of  New  Jersey, 


County  of 

This  is  to  Certify,  That  a  certain  indenture  of  mortgage,  bearing  date 
the  day  of  one  thousand  eight  hundred  and  made 

and  executed  by  {nauie,  }-esidence,  and  occupation  of  ))iortgagor)  to  {tiavie^ 
residence,  and  occupation  of  mortgagee)  to  secure  the  payment  of 
dollars,  and  in  the  office  of  the  of  the  County  of 

in  Liber  of  Mortgages,  page         on  the  day  of  in 

the  year  one  thousand  eight  hundred  and  at         o'clock  in  the 

noon,  has  been  paid  and  satisfied,  and  may  be  discharged  of  record. 

Witness         hand     and  seal     the  day  of  A.D.  18 


.  sealed  and  Delivered  in  Presence  of 


{Sigfiatures.)    {Seals.) 


SS. 


State  of  Neav  Jersey, 

County  of 

I,  one  of  the  do  hereby  certify  that  on  the 

day  of  A.D.  one  thousand  eight  hundred  and  before 

me  personally  appeared  who,  I  am  satisfied,  the  grantor 

mentioned  in,  and  who  executed  the  within  certificate,  and  to  whom  I  first 
made  known  the  contents  thereof ;  that  thereupon  acknowledged  that 

had  signed,  sealed,  and  delivered  the  same  as  voluntary 

act  and  deed.  upon  a  private  examination,  apart  from  her  hus- 

band, before  me,  acknowledged  that  she  had  signed,  sealed,  and  delivered 
the  same  as  her  voluntary  act  and  deed,  freely,  without  any  fear,  threats, 
or  compulsion  of  her  husband. 

(Signature^     {Seal.) 

(192.) 

Release  of  Deed  of  Trust,  in  use  in  Colorado. 

Know  all  Men  by  these  Presents,    That  whereas   {name,    residence, 
and  occtipation  of  the  mortgagor)  of  the  County  of  in  the  State  of 

Colorado,  by  his  certain  deed,  of  trust,  dated  the  day  of 

A.D.  18  and  duly  recorded  in  the  office  of  the  County  Clerk  and  Recorder 
of  County,  in  the  State  of  Colorado,  on  the  day  of 

A.D.  18      in  book         of  said  County  Records,  on  page         con- 

veyed to  the  undersigned  {name  and  occ7ipation  of  trustee  in  the  trust  deed) 
of  the  County  of  in  the  State  of  Colorado,  as  trustee 

certain  real  estate  in  said  deed  of  trust  described,  in  trust  to  secure  to 
the  payment  of  certain  promissory  note     with  interest,  and  all  charges 

thereon,  as  in  said  deed  of  trust  mentioned. 


582  MOR  TGA  GES  OF  LA  ND. 

And  "Whereas,  The  said  ha      paid  and  fully  satisfied  said 

note      together  with  all  interest  and  charges  thereon,  according  to  its  tenor; 

Now,  Therefore,  At  the  request  of  the  said  as  aforesaid,  and 

hi  consideration  of  the  premises,  and  in  the  further  consideration  of  the  sum 
of  one  dollar,  to  me  in  hand  paid  by  the  said  the  leceipt  wliereof 

is  hereby  acknowledged,  I  trustee  as  aforesaid,  do  hereby  remise, 

release,  and  forever  quitclaim  unto  him,  the  said  and 

heirs  and  assigns  forever,  all  the  right,  title,  and  interest  which  I  have  in  and 
to  the  said  real  estate,  as  the  trustee  in  said  deed  of  trust  mentioned ;  and 
more  particularly  described  as  follows,  to  wit :  {describe  tJie  land  or  preinises 
mortgaged  and  now  released,  as  they  are  described  in  the  trust  deed  or  mort- 
gage) situate,  lying,  and  being  in  the  County  of  and  State  of 
Colorado. 

To  Ha\-e  and  to  Kcld  the  same,  together  with  all  and  singular  the 
privileges  and  appurtenances  unto  the  said  his  heirs  and  assigns 

forever.  And  further,  that  the  said  trust  deed  is,  by  these  presents,  to  be 
considered  as  fully  and  absolutely  released,  canceled,  and  forever  discharged. 

Witness  my  hand  and  seal,  this  day  of  A.D.  i8 

(Signature.)        {Seal.) 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 

State  of  Colorado,    > 

)-  ss. 
County  of  ) 

I,  in  and  for  said  county,  in  the  State  aforesaid,  do  hereby  certify 

that  personally  known  to  me  as  the  person  whose  name  is  subscribed 
to  the  annexed  deed,  appeared  before  me  this  day  in  person  and  acknowl- 
edged that  he  signed,  sealed,  and  delivered  the  said  instrument  of  writing  a.« 
his  free  and  voluntary  act,  for  the  uses  and  purposes  therein  set  forth. 
Given  under  my  hand  and  seal,  this  day  of  A.D.  i8 

{Sig7iatttre.)    {Seal.) 

(193.) 
Brief  Release  of  Mortgage,  in  use  in  Kansas. 

In  consideration  of  the  payment  of  the  debt  named  therein,  I  release  the 
mortgage  made  by  to  me,  which  is  recorded  in  Book  of 

Mortgages,  page  of  the  Records  of  County,  Kansas. 

"Witness  my  hand  and  seal,  this  day  of  i8 


{Signature)    {Seal.) 


State  of 

ss. 
County. 


On  this  day  of  A.D.  i8      before  me,  a  in 

and  for  said  County,  personally  came  to  me  personally  known 

to  be  the  identical  person  whose  name  is  affixed  to  the  above  release  as 


FORAfS  OF  MOR TGA GFS,  FTC.  583 

maker,  and  acknowledged  tlie  execution  of  the  same  to  be  his  voluntary  act 
and  deed. 

Witness  my  hand  and  seal  the  day  and  year  last  above  written. 

{Signature.)    {Seal.) 
(194.) 

Release  of  a  Trust  Deed  Mortgage  at  the  Request  cf  the 
Creditor,  in  use  in  Virginia  and  "West  Virginia. 

Tliis  Deed,   Made  this  day  of  in  the  year  one 

thousand  eight  hundred  and  between  {name,  residence,  a7td  occu- 

pation  of  the  party  of  the  first  part  in  the  original  trust  deed)  of  the 
of  the  first  part,  and  {name  of  the  party  of  the  second  part  in  the  original 
trnst  deed)  of  the  of  the  second  part,  and  {name  of  the  party  of  the 

third  part  in  the  trust  deed)  of  the  of  the  third  part. 

Whereas,  The  said  in  order  to  secure  the  said  the 

payment  of  the  sum  of  did,  by  deed  bearing  date  on  the 

day  of  iS      recorded  in  the  office  of  the  Clerk  of 

convey  to  the  said  heirs  and  assigns,  certain 

estate  described  in  the  said  deed  as  follows  :  {here  describe  the  land  or  prem- 
ises mortgaged  and  now  released,  in  the  same  taay  as  in  the  trust  deed)  and 
the  said  sum  of  money  having  been  fully  paid  to  the  said 

he      the  said  ha      requested  that  the  estate  conveyed  by  the  said 

deed  of  trust  to  the  said  in  the  said  property  hereinbefore  men- 

tioned and  described,  be  now  released  to  the  said 

This  deed,  therefore,  witnesseth,  that  for  and  in  consideration  of  the  prem. 
ises,  as  well  as  of  the  sum  of  five  dollars,  the  said  with  the  consent 

of  the  said  signified  by  signing  and  sealing  this  deed,  do 

release  to  the  said  all  claim  upon  the  said  property. 

Witness  the  following  signatures  and  seals. 

{Signatures.)     {Seals.) 
State  of  Virginia. 

of  To  wit : 

I,  for  the  aforesaid,  in  the  State  of  Virginia,  do 

certify  that  whose  name  signed  to  the  within  writing, 

bearing  date  on  the  day  of  18      ha      acknowledged 

the  same  before  me  in  my  aforesaid. 

Given  under  my  hand  this  day  of  18 

{Signature^     {Seal.) 
(195.) 

Satisfaction  of  Mortgage,  in  use  in  Minnesota. 
Know  all  Men  by  these  Presents,  That  I  {or  we)  {name,  residence,  and 
occ2ipation  of  assignee  or  assignees)  do  acknowledge  full  payment  and  satis- 
faction of  a  certain  indenture  of  mortgage  executed  by  to 
dated  the                    day  of                     18      ,  and  recorded 


584 


MORTGAGES  OF  LAND. 


ill  tlie  office  of  Register  of  Deeds  for  the  County  of  State  of 

Minnesota,  on  the  day  of  i8      ,  in  book         of  mort- 

gages, page  .     Said  mortgage  was  given  upon  the  following  described 

real  estate,  situate  in  the  County  of  and  State  of  Minnesota,  viz.  : 

(desa'ibe  the  land  or  premises  mortgaged  and  released,  substantially  in  ilie 
same  way  as  tliey  are  described  in  the  inortgage).  If  the  mortgage  has  been 
assigned,  the  assignee  must  insert  the  following  claitse  in  brackets.  [Which 
said  mortgage  was  on  the  day  of  A.D.  i8      ,  duly  assigned  and 

transferred  by  the  ?,-a.\d{natne  of  the  mortgagee)  to  {the  naine  of  tlie  assig7iee)hy 
written  assignment,  which  was  on  the  day  of  A.D.  i8     ,  duly 

recorded  in  said  office  of  Register  of  Deeds  for  the  said  County  of 
in  book         of  mortgages,  page  (Jicrc  e7ittjnerate  iti  a  similar  way  any  subse- 
quent assignments  of  the  mortgage  so  as  to  show  that  it  is  now  in  the  hands 
of  the  releasor.']     And  do  hereby  authorize  and  require  the  Register  of 

]  eeds  of  the  said  County  of  to  cancel  and  discharge  the  same  of 

record  in  his  office. 

Witness  hand    and  seal    ,  this  day  of  A.D.  i8     . 


In  Presence  of 

State  of  Minnesota, 


{Signatures.)      {Seals.) 


County  of 

On  this  day  of  A.D.  iS     ,  came  before  me 

(o  me  personally  known  to  be  the  identical  person  described  in  and  who 
(•xecuted  the  within  satisfaction  deed         acknowledged  that  executed 

\\\t  same  freely  and  voluntarily  for  the  uses  and  purposes  therein  expressed. 

Notajy  Picblic,  Minnesota. 

(196.) 

Assignment  of  Mortgage,  in  use  in  Michigan. 
Know  all  Men  by  these  Presents,  that  I  {name,  residence,  and  occu- 
pation of  assignor)  of  the  first  part,  for  and  in  consideration  of  the  sum  of 
lawful  money  of  the  United  States  of  America,  to 
in    hand   paid    by  {name,   residence,    and  occupation  of  assignee) 
of  the  second  part,  at  or  before  the  ensealing  or  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  have  granted,  bargained,  sold, 
assigned,  transferred,  and  set  over,  and  by  these  presents  do  grant,  bargain, 
sell,  assign,  transfer,  and  set  over  unto  the  said  part     of  the  second  part,  a 
certain  indenture  of  mortgage,  bearing  date  the  day  of 

one  thousand  eight  hundred  and  made  by  and  between  {here 

describe  careftilly  the  mortgage  assigned,  giving  the  names  of  the  parties  afid 
the  description  of  the  premises  mortgaged,  as  described  in  the  mortgage). 
And  recorded  in  the  office  of  the   Register  of    Deeds  of  the    County  of 

,  and  State  of  Michigan,  in  Liber  of  Mortgages,  at  page 

with  all  and  singular  the  premises  therein  mentioned  and  described,  together 
with  the  {note,  bond,  or  debt)  or  obligation  therein  also  mentioned,  and  the 


FORMS  OF  MORTGAGES,  ETC.  585 

moneys  now  due,  or  to  become  due,  and  the   interest  that  may  hereafter 
grow  due  thereon. 

To  Have  and  to  Hold  the  same  unto  the  part     of  the  second  part 
heirs  and  assigns  forever,  subject  'only  to  the  proviso  in  the  said  indenture 
of  mortgage  mentioned.     And  do  hereby  authorize  and  appoint  the  said 

part     of  the  second  part,     true  and  lawful  attorney,  irrevocable,  in         name, 
or  otherwise  but  at  proper  costs  and  charges,  to  have,  use,  and  take  all 

lawful  ways  and  means  for  the  recovery  of  the  sum  or  sums  of  money  now  due 
and  owing,  or  hereafter  to  become  due  and  owing,  upon  the  said  and 

mortgage  ;  and  in  case  of  payment,  to  give  acquittance  or  other  sufficient 
discharge,  as  fully  as  might  or  could  do  if  these  presents  were  not 

made  ;  and  do  hereby  for  heirs,  executors,  and  administrators, 

covenant,  promise,  and' agree  to  and  with  the  said  part     of  the  second  part, 
that  there  is  due  upon  the  said  and  mortgage 

the  sum  of  and  that  have  good  right  and  lawful  authority 

lo  grant,  bargain,  and  sell  the  same  in  manner  aforesaid.  ^ 

Sealed  and  delivered  the  day  of  18     . 


\ 


{Signatures)     {Seals.) 


SS. 


I?t  Presence  of 

State  of  Michigan, 

County  of  ) 

On  this  day  of  A.D.  one  thousand  eight  hundred 

:ind  before  me,  a  in  and  for  said  County,  personally 

appeared  to  me  known  to  be  tlie  same  person      described  • 

in  and  who  executed  the  within  instrument,  and  acknowledged  the  same  to 
be  free  act  and  deed. 

{Sigjtature) 

(197.) 
Deed  of  Mortgage  in  use  in  New  York. 

This  Indenture,   Made  the  day  of  in  the  year 

one  thousand  eight  hundred  and  between  {name,  residence, 

and  occupation  of  the  mortgagor)  of  the  first  part,  and  {name,  residence,  and 
occupation  of  the  mortgagee)  of  the  second  part. 

Whereas,  the  said  {name  of  the  mortgagor)  justly  indebted  to  the  said 
part     of  the  second  part,  in  the  sum  of  lawful  money  of 

the  United  States,  secured  to  be  paid  by  certain  bond  or  obliga- 

tion bearing  even  date  with  these  presents,  in  the  penal  sum  of 
lawful  money  as  aforesaid,  conditioned  for  the  payment  of  the  said  first 
mentioned  sum  of  lawful  money  as  aforesaid,  to  the  said 

part     of  the  second  part,  executors,  administrators,  or  assigns, 

on  the  day  of  which  will  be  in  the  year  one  thousand 

eight  hundred  and  and  interest  thereon  to  be  computed  from 

at  and  after  the  rate  of  per  cent,  per  annum,  to  be 

paid  .     And  it  is  thereby  expressly  agreed,  that  should 


586  MORTGAGES  OF  LAND. 

any  default  be  made  ia  the  piiyment  of  the  said  interest,  or  of  any  part 
thereof,  on  any  day  whereon  the  same  is  made  payable,  as  above  expressed, 
or  should  any  tax  or  assessment  be  hereafter  imposed  upon  the  premises 
hereinafter  described  and  become  due  or  payable,  and  should  the  said 
interest  remain  unpaid  and  in  arrear  for  the  space  of  {usiially  thirty)  days, 
or  such  tax  or  assessment  remain  unpaid  and  in  arrear  for  {usually  ninety 
days)  then  and  from  thenceforth,  that  is  to  say,  after  the  lapse  cf  either  one 
of  said  periods,  as  the  case  may  be,  the  aforesaid  jrincipal  sum,  with  all 
arrearage  of  interest  thereon,  shall,  at  the  option  of  the  said  part  of  the 
second  part,  administrators  or  assigns,  become  and  he  due  and 

payable  immediately  thereafter,  although  the  period  above  limited  for  the 
payment  tliereof  may  not  then  have  expired,  anything  thereinbefore  con- 
tained to  the  contrary  thereof  in  anywise  notwithstanding.  As  by  the  said 
bond  or  obligation,  and  the  condition  thereof,  reference  being  thereunto 
had,  may  more  fully  appear. 

Now  this  Indenture  "WitncEretli,  That  the  said  part  of  the  first  part, 
for  the  better  securing  the  payment  cf  the  said  sum  of  money  mentioned  in 
the  condition  of  the  said  bond  or  obligation,  with  interest  thereon,  according 
to  the  true  intent  and  meaning  thereof,  and  also  for  and  in  consideration  of 
the  sum  of  one  dollar  to  in  hand  paid  by  the  said  part     of  the 

second  part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the 
receipt   whereof    is   hereby  acknowledged,  ^la     granted,    bargained,   sold, 
aliened,  released,  conveyed,  and  confirmed,  and  by  these  presents  do 
gra'nt,  bargain,  sell,  aliene,  release,  convey,  and  confirm  unto  the  said  part 
of  the  second  part,  and  to  and  assigns  forever,  all  {Jicre  insert  a 

description  of  the  premises  mortgaged,  as  directed  in  Form  107). 

Tojjetlier  with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  beloncin^,  or  in  anpvise  appertaining,  and  the  rever- 
sion and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits 
thereof.      And  also,  all  the  e.-tate,  right,  title,  interest  property, 

possession,  claim,  and  demand  whatsoever,  as  well  in  law  as  in  equity,  of 
the  said  part  of  the  first  part,  of,  in,  arid  to  the  same,  and  every  part  and 
parcel  t'aereof,  with  the  appurtenances  : 

To  Have  and  to  Hold  the    above    granted,   bargained,   and    described 
premises,  with  the  appurtenances  unto  the  said  part     of  the  second  part, 
heirs  and  assigns,  to  their  own  proper  use,  benefit,  and  behoof 

forever. 

Provided  always,  and  these  presents  are  upon  this  express  condition, 
that  if  the  said  part  of  the  first  part,  heirs,  executors,  or  administra- 
tors, shall  well  and  truly  pay  unto  the  said  part  of  the  second  part, 
executors,  administrators,  or  assigns,  the  said  sum  of  money  mentioned  in 
the  condition  of  the  said  bond  or  obligation  and  the  interest  thereon,  at  the 
time  and  in  the  manner  mentioned  in  the  said  condition,  according  to  the 
true  intent  and  meaning  thereof,  that  then  these  presents,  and  the  estate 
hereby  granted  shall  cease,  determine,  and  be  void. 


FORMS  OF  MOR TGA GES,  ETC.  38; 

And  the  said  heirs,  executors,  and  administrators,  do 

covenant  and  agree  to  pay  unto  the  said  part  of  the  second  p-rt,  execu- 
tors, administrators,  or  assigns,  t'.ie  said  sum  of  money  and  interest  as 
mentioned  above,  and  expressed  in  the  condition  of  the  said  bond.  And  if 
default  shall  be  made  in  the  payment  ef  tlie  said  sum  of  money  above 
mentioned,  or  the  interest  that  may  grow  due  thereon,  or  of  any  part  thereof, 
or  of  the  taxes  or  assessments  on  the  premises  hereby  granted,  that  then 
and  from  thenceforth  it  shall  be  lawful  for  the  sai.l  part  of  the  second  part 
executors,  administrators,  and  assigns,  to  enter  into  and  upon  a.l  and 
singular  the  premises  hereby  granted  or  intended  so  to  be,  and  to  sell  and 
dispose  of  the  same  and  all  benefit  and  equity  of  redemption  of  the  said 
part     of  the  first  part,  heirs,  executors,  a:lministrators,  or  assigns 

therein,  at  public  auction,  according  to  the  act  in  su:h  case  made  and  pro- 
vided. And  as  the  attorney  of  the  sa'd  part  of  the  first  part,  for  that 
purpose  by  t'.iese  presents  duly  authorized,  constituted,  and  appointed,  to 
make  and  deliver  to  the  purchaser  or  purchasers  thereof,  a  good  and  sufli- 
cient  deed  or  deeds  of  conveyance  in  the  law  for  the  same,  in  fee-simple, 
and  out  of  the  money  arising  from  such  sale,  to  retain  the  principal  and 
interest  which  shall  then  be  due  on  the  said  bond  or  obligation,  together  with 
the  costs  and  charges  of  advertisement  and  sale  of  the  said  premises, 
rendering  the  overplus  of  the  purchase  money  (if  any  there  shall  be),  unto 
the  said  of  the  first  part,  heirs,  executors,  administrators, 

or  assigns  ;  which  sale,  so  to  be  made,  sliall  forever  be  a  perpetual  bar,  both 
in  law  and  equity,  against  the  said  part     of  the  first  part  heirs  and 

assigns,  and  all  other  persons  claiming  or  to  claim  the  premises,  or  any  part 
thereof,  by,  from,  or  under  them,  or  either  of  them. 

And  the  said  do  further  covenant,  grant,  promise,  and 

agree,  that  the  said  part     of  the  first  part,  shall  and  will  make, 

execute,  acknowledge,  and  deliver  in  die  form  of  law  all  such  further  or 
other  deeds  or  assurances  as  may  at  any  time  hereafter  be  devised  or 
required,  for  tlie  more  fully  and  effectually  conveying  the  premises  above 
described  and  hereby  granted,  or  intended  so  to  be,  unto  the  said  part  of 
the  second  part  executors,  administrators  or  assigns,  for  the  purposes 

aforesaid,  and  unto  all  and  every  person  or  persons,  corporation  or  corpora- 
tions, deriA-ing  any  estate,  right,  title,  or  interest  therein,  under  this  indenture 
or  the  power  of  sale  herein  contained,  and  the  above  granted  premises 
against  the  said  part  of  the  fir<t  part,  and  all  persons  claiming  through 
them  will  warrant  and  defend. 

And  it  is  expressly  agreed  by  and  between  the  parties  to  these  presents, 
that  the  said  part  of  the  first  part  shall  and  will  keep  the  buildin<;s  erected 
and  to  be  erected  upon  the  lands  above  conveyed,  insured  against  loss  and 
damage  by  fire,  by  insurers,  and  in  an  amount  approved  by  the  siid  part 
of  the  second  part,  and  assign  the  policy  and  certificates  thereof  to  the  said 
part  of  the  second  part;  and  in  default  thereof,  it  shall  be  lawful  for  the 
said  part    of  the  second  part  to  effect  such  insurance,  and  the  premium  and 


588  MORTGAGES  OF  LAND. 

premiums  paid  for  effecting  the  same  shall  be  a  lien  on  the  said  mortgaged 
premises,  added  to  the  amount  of  the  said  bond  or  obligation,  and  secured 
by  these  presents,  and  payable  on  demand  with  interest  at  the  rate  of 
per  cent,  per  annum. 

In  Witness  Whereof,  the  said  part     of  the  first  part  ha     hereunto  set 
hand    and  seal    the  day  and  year  first  above  written. 
And  {nai)ie  of  wife  of  mortgagor^  if  married)  signs  and  seals  this  deed 
in  token  of  her  relinquishment  and  release  to  the  said  mortgage  of  all  her 
right  and  claim  of  dower  in  and  to  the  premises  hereby  granted. 
Sealed  and  Delivered  in  the  Presence  of 

{Signatures.)     (Seals.) 
State  of  '^ 

OF  y  ss. 

County  of  ) 

On  the  day  of  in  the  year  one  thousand  eight  hundred 

*ind  before  me  personally  came  to  be  the  individual 

tl^escribed  in,  and  who  executed  the  foregoing  instrument,  and 
acknowledged  that      he      executed  the  same. 

(198.) 

The  Bond  to  be  Secured  by  the  Preceding  Form  of 
Mortgage. 

Know  all  Men  by  these  Presents,  That  (na/ne,  residence,  and  occupa- 
tion of  the  mortgagor)  held  and  firmly  bound  unto  {name,  residence,  and 
(A:cupatio7i  of  the  mortgagee)  in  the  sum  of  lawful  money  of  the 

United  States  of  America,  to  be  paid  to  the  said  executors, 

administrators,  or  assigns :  For  which  payment  well  and  truly  to  be  made, 
bind  heirs,  executors,  and  administrators  firmly 

by  these  presents.     Sealed  with  seal         .     Dated  the  day 

of  one  thousand  eight  hundred  and 

The  Condition  of  the  above  Obligation  is  such,  That  if  the  above 
bounden  heirs,  executors,  or  administrators,  shall  well  and  truly 

pay,  or  cause  to  be  paid,  unto  the  above-named  executors,  adminis- 

trators, or  assigns,  the  just  and  full  sum  of  the  day  of 

which  will  be  in  the  year  one  thousand  eight  hundred  and 
and  the  interest  thereon,  to  be  computed  from  at  and  after  the  rate 

of  per  cent,  per  annum,  and  to  be  paid  then  the  above 

obligation  to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

And  it  is  Hereby  Expressly  Agreed,  that  should  any  default  be  made 
in  the  payment  of  the  said  interest,  or  any  part  tliereof,  on  any  day  whereon 
the  same  is  made  payable,  as  above  expressed,  or  should  any  tax  or  assess- 
ment be  hereafter  imposed  upon  the  premises  described  in  the  mortgage 
nccompanying  this  bond,  and  become  due  or  payable,  and  should  the  said 
interest  remain  unpaid  and  in  arrear  for  the  space  of  days,  or  said 


FORMS  OF  MORTGAGES,  ETC.  5 89 

tax  or  assessment  remain  unpaid  and  in  arrears  for  then  and  from 

tlienceforth,  that  is  to  say,  after  the  lapse  or  expiration  of  either  one  of  tlic 
said  periods,  as  tlie  case  may  be,  the  aforesaid  principal  sum  of  wiiii 

all  arrearage  of  interest  thereon,  shall,  at  the  option  of  the  said  or 

Jegal  representatives,  become  and  be  due  and  payable  immediately  thereafter, 
although  the  period  above  limited  for  the  payment  thereof  may  not  then 
liave  expired,  anything  hereinbefore  contained  to  the  contrary  thereof  in 
anywise  notwithstanding. 

{Signatures.)        (Seals.) 
Signed,  Sealed,  and  Delivered  in  the  Presence  of 

State  of  \ 

OF  >  ss. 

County  of  ) 

On  the  day  of  in  the  year  one  thousand  eight 

hundred  and  before  me  personally  came  to  be  the  individual 

described  in,  and  who  executed  the  foregoing  instrument,  and  acknowl- 

edged that     he     executed  the  same. 

(199.) 

Satisfaction  of  Mortgage,  in  use  in  New  York. 

State  of  New  York,        ^ 

>■  ss. 
County  of  ,  \ 

I  do  hereby  Certify,  That  a  certain  Indenture  of  Mortgage,  bearing  date 
the  day  of  one  thousand  eight  hundred  and  made  and 

executed  {name,  residence,  and  occupation  of  mortgagor)  on  {give  the  day  of 
the  date  of  the  mortgage)  to  {name,  residence,  and  occupation  of  mortgagee) 
for  the  amount  of  and  recorded  in  the  office  of  County  cif 

in  Lib.  of  Mortgages,  page        on  the  day  of 

in  the  3-ear  one  thousand  eight  hundred  and  o'clock,  in  the 

is  paid. 

And  I  do  hereby  consent  that  the  same  be  discharged  of  Record. 

Dated  the  day  of  18 


In  presence  of 


{Signature.)        {Seal.) 


ss. 


State  of  New  York, 

County  of 

On  the  day  of  in  the  year  one  thousand  eight  hund- 

red and  before  me  personally  came  to  be  the  individual 

described  in,  and  who  executed  the  foregoing  instrument,  and  acknowledged 
that    he     executed  the  same. 

{Signatures).        {Seals.) 


590 


MORTGAGES  OF  LAND. 


(200.) 
Assignment  of  Mortgage.— Short  Form. 

Know  all  Men  by  these  Presents,  That  I  {iiavie,  residetice,  and  occnpa' 
Hon  of  the  assignor)  tlie  mortgagee  named  in  a  certain  mortgage  deed, 
given  by  {name,  residence,  and  occitpation  of  the  mortgagor)  to  said  {iiaine 
of  assignor)  to  secure  the  payment  of  dollars  y^^,  dated  the 

day  of  in  the  year  of  our  Lord  eighteen  hundred  and 

recorded  in  the  registry  of  deeds  for  tlie  County  of 

lib.         fol.         in  consideration  of  the  sum  of  dollars  ^-^  to  me 

paid  by  {name,  residence,  and  occupation  of  buyer  and  assignee)  the  receipt 
thereof  is  hereby  acknowledged,  do  hereby  sell,  assign,  transfer,  set  over 
and  convey  unto  said  {name  of  assignee)  and  his  heirs  and  assigns,  said 
mortgage  deed,  the  real  estate  thereby  conveyed,  and  the  promissory  note, 
debt,  and  claim  thereby  secuied,  and  the  covenants  therein  contained. 

To  Have  and  to  Hold  the  same  to  him  the  said  {name  of  assignee) 
and  his  heirs  and  assigns,  to  his  and  their  use  and  behoof  forever;  sub 
jfcct  nevertheless  to  the  conditions  herein  contained,  and  to  redemptiop 
ao:cording  to  law. 

In  Witness  "Whereof,  I,  the  said  have  hereunto  set  my  hand 

and  seal  this  day  of  in  the  year  of  our  Lord  eighteea 

hundred  and 

{Sig7tati(re.)     {Seal.) 
Executed  and  Delivered  in  Presence  of  ' 

ss.  A.D.  i8 

Then  personally  appeared  the  above-named  and  acknowledgecf 

the  above  instrument  to  be  his  free  act  and  deed.     Before  me, 

{Signature.) 
(201.) 
Assignment  of  Mortgage,  with  Power  of  Attcrney. 

Know  all  Men  by  these  Presents,  That  I,  {name,  residence,  and  occu- 
pation of  assignor)  party  of  the  first  part,  in  consideration  of  the  sum  of 
lawful  money  of  the  United  States,  to  me  in  hand  paid  by  {name, 
residence,  and  occupation  of  assignee)  of  the  second  part,  at  or  before  the 
ensealing  and  delivery  of  these  presents,  the  receipt  whereof  is  hereby 
acknowledged,  have  granted,  bargained,  sold,  assigned,  transferred,  and  set 
over,  and  by  these  presents  do  grant,  bargain,  sell,  assign,  transfer,  and  set 
over  unto  the  said  party  of  the  second  part,  his  executors,  administrators, 
and  assigns,  a  certain  indenture  of  mortgage,  bearing  date  the 
day  of  one  thousand  eight  hundred  and  made  by 

{here  state  the  name  of  the  mortgagor,  and  briefly  describe  the  inortgage  deed, 
and  state  the  volume  and  page  where  it  is  registered)  to  which  reference  may 
be  made,  together  with  all  the  right,  title,  interest,  and  estate  of  said  party 
of  the  first  part,  in  and  to  the  premises  described  and  conveyed  in  and  by 
said  indenture  of  mortgage. 


FORMS  OF  MORTGAGES,  ETC.  591 

Together  with  the  Ijond  (or  note)  therein  described  and  the  money  due 
and  to  grow  due  thereon,  with  the  interest  accruins^  or  accrue;!,  to  have  and 
to  hold  the  same,  unto  the  siid  party  of  the  second  part,  his  executors, 
administrators,  and  assigns,  for  his  and  thtir  use,  subject  only  to  the  proviso 
in  the  said  in  enture  of  mortgage  mentioned;  and  1  do  hereby  make,  con- 
stitute, and  appoint  the  said  party  of  the  second  pTrt.  my  true  and  lawful 
attorney,  irrevocably  in  my  name  or  otherwise,  but  at  his  own  proper  costs 
and  charges,  to  have,  use,  and  take  all  lawful  ways  and  means  for  the 
recovery  of  the  said  money  and  interest:  and  in  cise  of  payment  to  dis- 
charge t'.ie  same  as  fully  as  I  might  or  could  do  if  these  presents  were  not 
made. 

In  "Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal  the 
day  of  one  thousand  eight  hundred  and 

{Signature.)     {Seal.) 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 

State  of  ■) 

>  ss. 
County.  ) 

On  this  day  of  eighteen  hundred  and 

personally  appeared  before  me  known  to  me  to  be  the 

person  who  signed  and  sealed  the  foregoing  assignment  of  mortgage,  and 
acknowledged  t'.ie  execution  of  the  same  for  the  uses  and  purposes  therein 
set  for'h.  • 

Given  under  my  hand  and  seal  at  in  said  county  aforesaid. 

{Signature.)    {Seal.) 

(202.) 

Assignment  of  Mortgage  by  a  Corporation. 

Know  all  Men  by  these  Presents,  That  the  {legal  fiatne  of  the  corpo^ 
ration  assigning)  existing  as  a  corporate  body,  in  and  under  the  laws  of  the 
.State  of  of  the  first  part,  for  and  in  consideration  of 

the  sum  of  lawful  money  of  the  United  States,  to  the 

said  corporation  paid  by  {natne,  residence,  and  occ7ipation  of  assignee)  of  the 
second  part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  hath  granted,  bargained,  sold,  as- 
signed, transferred,  and  set  over,  and  by  these  presents  doth  grant,  bargain, 
sell,  assign,  transfer,  and  set  over  unto  the  said  party  of  the  second  part,  a 
certain  indenture  of  mortgage,  bearing  date  the  day  of 

one  thousand  eight  hundred  and  made  by 

(here  state  the  jiaine  of  the  tnortgagor,  and  brief y  describe  the  mortgage  deed) 
the  same  being  duly  registered  in  the  office  of  the  register  of  deeds  for  the 
County  of  and  State  of  to  which  said  indenture 

of  mortgage  reference  may  be  had. 

Together  with  the  bond  or  obligation  therein  described,  and  the  moneys 


592  MORTGAGES  OF  LAND. 

due,  and  to  grow  due  thereon,  with  the  interest :  to  have  and  to  hold  the 
same  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns,  for  his 
and  their  own  use,  subject  only  to  the  proviso  in  the  said  indenture  of  mort- 
gage mentioned.  And  the  said  party  of  the  first  part  doth  hereby  make, 
constitute,  and  appoint  the  said  party  of  the  second  part  its  true  and  lawful 
attorney,  irrevocable,  in  the  name  of  the  said  party  of  the  first  part,  or 
otherwise,  but  at  the  proper  costs  and  charges  of  the  said  party  of  the  second 
part,  to  have,  use,  and  take  all  lawful  ways  and  means  for  the  recovery  of 
the  said  money  and  interest,  and  in  case  of  payment,  to  discharge  the  same 
as  fully  as  the  said  party  of  the  first  part  might  or  could  do  if  these  pres- 
ents were  not  made. 

In  Witness  Whereof,  the  said  party  of  the  first  part  hath  caused  its 
corporate  seal  to  be  affixed  to  these  presents,  and  the  same  to  be  signed  by 
its  attorney  and  president  {or  other  officer)  the  day  of 

in  the  year  one  thousand  eight  }iundred  and 

{SigJiafure.)     {Seal  of  the  Corporation.) 
Signed,  Sealed,  and  Delivered  in  Presence  of 

State  of  ) 

-  ss. 
County.  ) 

On  the  day  of  in  the  year  one  t'.iousand  ei2:hl 

hundred  and  ,  before  me  came  with  whom  I 

am  personaVy  acquainted,  and  known  to  me  to  be  the  attorney  and 
of  the  within  named  corporation,  who,  being  by  me  duly  examined,  says,  that 
the  seal  which  is  affixed  to  the  within  assignment  is  the  corporate  seal  of  tho 
said    corporation,  and  was  so  affixed    by  its  authority,  and  acknowledged 
that  he  executed  the  same  as  its  act  and  deed. 

{Signature.) 

(203.) 

Discharge  of  Mortgage.— Short  Form, 

This  Debt,  secured  by  the  mortgage,  dated  and  recorded 

with  deeds,  lib.  fol.  has  been  paid  to  me  by  {najiu 

of  mortgagor)  and  in  consideration  thereof   I  do  discharge  the    mortgage 
and  release  the   mortgaged   premises  to  said  {name  of  mortgagor)  and  his 
heirs. 
Witness  my  hand  and  seal  A.D.  1 8 

{Signature)    {Seal.) 
Executed  and  Delivered  in  Presence  of 

ss.  A.D.  1 8        .     Then  said  acknowledged  the 

foregoing  instrument  to  be  free  act  and  deed. 


Before  me, 


{Signature) 


FORMS  OF  MORTGAGES,  ETC.  593 

(204.) 

Release  and  Quitclaim  of  Mortgage,  as  used  in  the  "West- 
ern States. 
Know  all  Men  by  these  Pi-esents,  That  I  {jtauie  of  ino7-tgagee)oi\\\Q 
County  of  and  State  of  for  and  in  con- 

sideration of  one  dollar,  to  me  in  hand  paid,  and  for  other  good  and  valuable 
considerations,  the  receipt  whereof  is  hereby  confessed,  do  hereby  grant, 
bargain,  remise,  convc)-,  release,  and  quitclaim  unto  {na7/ie  of  assignee  or 
releasee)  of  the  County  of  and  State  of 

all  the  right,  title,  interest,  claim,  or  demand  whatsoever  I  may  have  acquirec^. 
in,  through,  or  by  a  certain  indenture  or  mortgage  deed,  bearing  date  the 
day  of  A.D.  18         ,  and  recorded  in 

the  recorder's  office  of  County,  in  book 

of  page  to  the  premises  therein  described, 

and  which  said  deed  was  made  to  secure  a  certain  promissory  note  (or  bond) 
bearing  even  date  with  said  deed,  for  the  sum  of 
dollars  and  cents. 

Witness  my  hand  and  seal  this  day  of  A.D.  iS 

{Signature.)     {Seal.) 
State  of 

couxtv  of 

I,  in  and  for  said  county,  in  the  State  aforesaid, 

do  hereby  certify  that  who  is  personally  known  to  me  r.? 

the  same  person  whose  name  is  subscribed  to  the  foregoing  deed,  appeared 
before  me  this  day,  in  person,  and  acknowledged  that  he  signed,  sealed,  and 
delivered  the  said  instrument  of  writing  as  his  free  and  voluntary  act,  for  the 
uses  and  purposes  therein  set  forth. 

Given  under  my  hand  and  seal  this  day  of  A.D.  iS 

{Signature.)     {Seal.) 
(205.) 
Discharge  of  Mortgage,  as  used  in  the  Middle  States. 
State  of  ^ 

>-  ss. 
County.     ) 
I,  {name,  residence,  a>td  occupation  of  mortgagee)  do  hereby  certify  that 
»i  certain  indenture  {or  deed)  of  mortgage,  bearing  date  the  day 

of  one  thousand  eight  hundred  and  made  and 

executed  by  {here  state  the  name  of  the  mortgagor,  and  describe  the  deed 
briefly)  and  recorded  in  the  office  of  County  of 

in  lib.  of  Mortgages,  page  on  the  day  of 

in  the  year  one  thousand  eight  hundred  and  o'clock  in  the 

is  paid.     And  I  do  hereby  consent  that  the  same  be  discharged 
of  record. 

Dated  the  day  of  18 

{Signature^     {Seal.) 
In  Presence  of 

38 


594  MORTGAGES  OF  LAND. 

State  of  ) 

>  ss. 
County  of  ) 

On  the  day  of  in  the  j-ear  one  tliousand  eight 

hundred  and  before  me  personally  came 

who  is  known  to  me  to  be  the  individual  described  in,  and  who  executed  the 

foregoing-  instrument,  and  acknowledged  that  he  executed  the  same  as  his  free 

act  and  deed. 

{^Signature) 

(206.) 
Discharge  and  gatisfaction  cf  Mortgage  by  a  Corporation. 

{the  legal   name  of  the    corporatioit)  a    corporate  body  existing 
within  and  under  the  laws  of  the  State  of 

Doth,  hereby  Certify,  That  a  certain  mortgage,  bearing  date  the 
day  of  in  the  year  one  thousand  eight  hundred  and 

?nade  and  executed  \iy  {here  state  the  name  of  the  juortgagor,   a;td  describe 
ihe  mortgage  briefly)  and  recorded  in  the  office  of  the  register  in  and  for  the 
County  of  in  hb.  of  Mortgages, 

page  on  the  day  of  is  paid. 

In  Witness  Whereof,  The  said  corporation  has  caused  its  corporate 
i:eal  to  be  hereunto  affixed,  this  day  of  in  the  yeai 

one  thousand  eight  hundred  and 

{Signature  of  attorney)    {Seal  of  corporation.) 


Witnessed  by 
State  of 


>-ss. 


County  of 

On  the  day  of  in  the  year  one  thousand 

eight  hundred  and  ,  before  me  personally  came        ^ 

to  me  known,  who,  being  by  me  duly  sworn,  did  depose  and  say,  that  he 

resided  in  the  city  {or  toiun)  of  that  he  is  the 

attorney  and  president  {or  other  officer)  of   the  said  corporation  ;  that  he 

knew  the  corporate  seal  of  the  said  corporation,  and  that  the  seal  affixed  to 

the  foregoing  instrument  was  such   corporate  seal ;  that  it  was  affixed  by 

him  by  order  of  the  said  corporation,  and  that  he  signed  his  name  thereto  by 

the  like  order. 

{Signature^ 

(207.) 
Release  of  a  Part  of  the  Mortgaged  Premises. 

This  Indenture,  Made  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

{naine,  residence,  and  occupation  of  the  mortgagee  and  releasor)  party  of  the 
first  part,  and  {name,  residence,  and  occupation  of  the  7nortgagor  to  whom 
the  lease  is  given)  party  of  the  second  part. 


FORMS  OF  MORTGAGES,  ETC.  595 

"Whereas,  The  said  party  of  tlie  second  part,  by  indenture  of  mortgage, 
bearing  date  the  day  of  one  thousand  eight  hundred 

a, id  for  the  consideration  tlierein  mentioned,  and  to  secure  the 

jxiyment  of  the  money  therein  specified,  did  convey  certain  lands  and  tene- 
ments, of  wliicli  the  lands  hereinafter  described  are  part,  unto  the  said  party 
of  the  first  part. 

And  Whereas,  The  said  party  of  the  first  part,  at  the  request  of  the  said 
party  of  the  second  part,  has  agreed  to  give  up  and  surrender  the  lands  here- 
inafter described  unto  the  said  party  of  the  second  part,  and  to  liold  and 
retain  the  residue  of  the  mortgaged  lands  as  security  for  the  money  remain- 
ing due  on  the  said  mortgage  : 

Now  this  Indenture  "Witnesseth,  That  the  said  party  of  the  first  part, 
in  pursuance  of  the  said  agreement,  and  in  consideration  of  to 

him  duly  paid  at  the  time  of  the  ensealing  and  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  has  granted,  released,  cjuit- 
clainied,  and  set  over,  and  by  these  presents  does  grant,  release,  quitclaim, 
and  set  over,  unto  the  said  party  of  the  second  part,  all  that  part  of  the  said 
mortgaged  land  yJiere  describe  carefully  and  accurately  all  that  part  of  the 
tnortgaged  land  which  it  is  intended  to  release,  distinonisliing  it  from  that 
which  is  retained'). 

Together  with  the  hereditaments  and  appurtenances  thereto  belonging; 
and  all  the  right,  title,  and  interest  of  the  said  party  of  the  first  part,  of,  in, 
and  to  the  same,  to  the  intent  that  the  lands  hereby  conveyed  may  be  dis- 
charged from  the  said  mortgage,  and  tliat  the  rest  of  the  lands  in  the  said 
mortgage  specified  may  remain  to  the  said  party  of  the  first  part  as  here- 
tofore. To  have  and  to  hold  the  lands  and  premises  hereby  released  and 
conveyed,  to  the  said  party  of  the  second  part,  and  his  heirs  and  assigns,  to 
his  and  their  only  proper  use,  benefit,  and  behoof  forever,  free,  clear,  and 
discharged  of  and  from  all  lien  and  claim,  under  and  by  virtue  of  the  inden- 
ture of  mortgage  aforesaid. 

In  Witness  Whereof,  The  said  party  of  the  first  part  has  hereunto  set 
his  hand  and  seal  on  the  day  of  in  the  year 

{Signature.)    {Seal.) 
Executed  and  Delivered  in  Presetice  of 


State  of 
County  of 


ss. 


On  the  day  of  in  the  year  one  thousand  eight 

hundred  and  before  me  personally  came  who  is 

known  to  me  to  be  the  individual  described  in,  and  who  executed  the  fore- 
going instrument,  and  acknowledged  that  he  executed  the  same  as  his  free 
act  and  deed. 

{Signatured 


596  MORTGAGES  OF  LAND. 

(208.) 
Deed  Extending  a  Mortgage. 

This  Indenture,  Made  this  day  of  A.D.  i8 

by  and  between  (jiame,  residence,  and  occupation  of  the  mortgagee)  the.  owner 
and  holder  of  a  certain  promissory  note  {or  bond)  for  the  principal  sum  of 
dollars,  given  by  {name  of  mortgagor)  and  secured  by  a  mort- 
gage of  certain  real  estate  in  in  the  County  of  and 
State  of  dated  day  A.D.  i8  and 
recorded  in  Registry  of  Deeds  for  the  County  of  lib. 
fol.  party  of  the  first  part,  and  the  said  {name  of  inortgagor)  party 
of  the  second  part, 

Witnesseth,  That  the  said  parties,  for  themselves  and  their  representa- 
tives, hereby  mutually  agree  that  the  time  for  the  payment  of  the  principal 
of  said  note  and  mortgage  debt  shall  be  and  the  same  ishereby  extended  for 
the  term  of  years  from  the  day  of  A.D. 

i8      and  that  the  same  is  to  bear  interest  from  said  date  at  the  rate  of 
per  cent,  per  annum,  payable  on  the  day  of  and  \\\^ 

day  of  in  every  year,  until  said  principal  sum  shall  b»» 

fully  paid. 

And  the  said  party  of  the  second  part  hereby  covenants  and  agrees  that 
he  will  not  require  the  holders  of  said  note  and  mortgage  to  receive 
payment  of  said  mortgage  debt  during  said  extended  term  ;  that  he  will 
punctually  pay  the  interest  now  due,  and  to  grow  due  thereon,  at  the  timet? 
and  at  the  rate  aforesaid  ;  that  lie  will  keep  the  mortgaged  premises  in  good 
repair,  and  insured  against  fire,  and  the  taxes  thereon  duly  paid,  accordin<» 
to  the  provisions  of  said  mortgage,  and  that  at  the  expiration  of  said  extended 
term     he     will  pay  the  said  mortgage  debt,  with  all  interest  then  due  thereon. 

It  is  expressly  understood  and  agreed  that  nothing  herein  contained  shall 
be  construed  to  impair  the  security  of  said  party  of  the  first  part,  or  his 
executors,  administrators,  or  assigns,  under  said  mortgage,  or  to  affect  cr 
impair  the  lien  on  the  real  estate  therein  described  which  he  has  by  virtus 
of  said  mortgage,  nor  affect  or  impair  any  rights  or  powers  which  he  may 
have  under  the  said  note  and  mortgage  for  the  recovery  of  the  mortgage 
debt,  with  interest,  in  case  of  non  fulfilment  of  this  agreement,  or  of  any  of 
the  provisions  hereof,  by  said  party  of  the  second  part. 

In  "Witness  Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

{Signature  of  7nortgagee.)     {Seal.) 
{Signature  of  mortgagor)     {Seal.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

Commonwealth  of  ss.  iS    .     Personally  appeared 

the  above-named  and  acknowledged  the  above  instrument  to  be 
their  free  act  and  deed. 

Before  roe,  {Signature.) 


FORMS  OF  MORTGAGES,  ETC.  597 

(209.) 

Deed  of  Mortgage  in  use  in  the  Province  of  Quebec. 

On  this  day,  the  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  before  the  undersigned,  public 

notar  duly  commissioned  and  sworn  in  and  for  the  Province  of  (Quebec,  in 
the  Dominion  of  Canada,  residing  in  the  city  of  Montreal,  in  the  said 
Province,  personally  came  and  appeared  {insert  the  name,  residence,  and  occu- 
pation of  the  mortgagor),  who  acknowledged  and  confessed  to  be  well  and 
truly  indebted  unto  {insert  the  name,  residence,  and  occupation  of  the  /Jiort- 
gagee)  hereto  present  and  accepting,  for  heirs  and  assigns,  in  the 

sum  of  currency,  for  value  which  the  said  do 

hereby  acknowledge  to  have  had  and  received  of  and  from  the  said 
to         full  and  entire  satisfaction  at  the  passing  of  these  presents,  whereof 
quit.     Which  said  sum  of  he  the  said  do     hereby 

promise  to  well  and  truly  pay,  or  cause  to  be  well  and  truly  paid,  unto  the 
siiid  heirs  or  assigns,  in  gold  coin,  at  its  present  standard  of  value, 

aad  of  the  same  weight  and  fineness  and  number  of  pieces  as  at  the 
date  of  the  passing  of  this  obligation,  in  before  which  time 

it  will  not  be  optional  with  or  competent  for  the  said  mortgagor  to  pay  the 
said   sum  or  any  portion  thereof  without  the  written  consent  of  said  mort- 
gagee or  representatives,  with  interest  thereon  till  paid,  at  the  rate  of 
per  centum  per  annum,  to  be  accounted  from  and  for  security  of 

the  due  and  faithful  payment  of  the  said  sum  of  and  interest 

at  the  times  and  in  the  manner  herein  above  agreed  upon,  the 
said  ha       mortgaged  and  hypothecated,  and  by  these  presents  do 

mortgage  and  hypothecate,  specially  to  and  in  favor  of  the  said  heirs 

and  assigns,  the  hereinafter  described, landed  property,  which     fie     declare 
>vell  and  truly  to  belong  to  {insert  him,  her,  or  them,  as  the  case  may  be;  then 
insert  the  description  of  the  premises  conveyed  in  mortgage,  substantially  as 
in  Form  107). 

Provided  always,  and  it  is  specially  covenanted  and  agreed  by  and 
between  the  said  parties  hereto,  and  this  clause  and  condition  is  not  to  be 
or  be  held  or  considered  to  be  penal  or  comminatory,  but  is  of  the  essence 
of  the  present  loan  and  obligation,  and  without  which  the  same  would  not 
have  been  made  or  executed,  that  should  the  said  mortgagor  make  default  in 
any  of  the  said  interest  payments  for  days  after  such  interest 

payment  shall  become  due  and  payable  as  aforesaid,  then  the  said  principal 
sum  shall  at  once  become  exigible  by  the  said  mortgagee,  h  heirs  or 
assigns,  and  that  without  any  judicial  demand,  notice,  or  other  formality 
whatsoever. 

And  the  said  mortgagor     do     hereby  further  bind  and  oblige 
immediately  to  insure  and  to  keep  constantly  insured  at  own  cost  and 

expense  against  loss  by  fire,  with  such  insurance  company  or  companies  as 
the  said  mortgagee  or  representatives  may  approve  of,  for  a  sum  of 

Qioney  not  less  than  the  house  and  other  buildings  erected  on 


598  MOR  TGA  GES  OF  LA  ND. 

the  above  described  piece  and  parcel  of  land,  and  to  transfer  to  the  said 
mortgagee  and  representatives  the  policy  or  policies  of  such  insurance  and 
insurances,  together  with  the  sum  of  money  thereby  insured,  the  whole  as 
long  as  any  part  or  portion  of  the  said  amount  in  principal  or  interest  may 
remain  unpaid.  Failing  which,  the  said  mortgagee  heirs  and  assigns,  shall 
have  the  right  to  do  so,  and  the  said  mortgagor  heirs  and  representatives, 
shall  be  bound  to  repay  on  demand  to  the  said  mortgagee  heirs  and  assigns, 
all  such  sum  and  sums  of  money  which  he  cr  they  may  have  expended  in  so 
doing ;  and  for  security  thereof  the  said  premises  are  hereby  further  hypothe- 
cated to  the  extent  of  .  Tl:e  said  mortgagor  to  pay  all  counsel 
and  notarial  fees  in  respect  hereof,  and  for  one  copy  of  these  presents  for 
the  said  mortgagee  and  costs  of  registration  ;  and  when  this  obligation  shall 
be  paid,  the  said  mortgagor  shall  bear  the  expense  of  drawing  and  register- 
ing a  discharge. 

And,  at    the  making  and  passing  of  these  presents,  personally  came, 
appeared,  and  intervened  Dame  vtife  of  the  said 

and  by  her  said  husband  duly  and  specially  aut'r.orized  for  the  effects  and 
purposes  hereof,  as  appears  by  his  signature  hereto,  who,  after  having  had 
and  taken  communication  of  the  foregoing  deed  cf  obligation  and  mortgage, 
doth  hereby,  until  payment  and  satisfaction  cf  the  present  obligation  and 
mortgage,  renounce,  as  well  in  her  own  name  and  behalf  as  for  and  in  the  name 
of  the  child  or  children  born  or  to  be  born  of  her  marriage  with  the  said 
in  favor  of  the  said  to  all  dower  and  aU  vight  or  title  of  dower 

which  she,  the  said  and  her  said  child  or  children,  might  or  of 

right  ought  to  have  or  claim  in,  to,  or  upon  the  hereby  mortgaged  premises, 
of  which  she  hereby  divests  herself  and  her  said  child  or  children,  declaring 
the  same  and  every  part  thereof  hereby  freed,  cleared,  and  discharged  of  and 
from  all  her  and  her  said  child  or  children's  said  rights  of  dower,  and  all 
other  her  matrimonial  rights,  whether  legal,  stipulated,  cr  customary,  until 
payment  of  the  present  obligation  as  aforesaid. 

And  for  the  execution  of  these  presents  the  said  parties  have  elected  the  r 
domicil  at  their  present  place  of  residence  above  mentioned,  where,  etc., 

Done  and  Pa,ssed,  at  the  said  City  of  Montreal,  in  the  office  of 
the  said  notar       under  the  number  thousand  hundred  and 

on  the  day,  month,  and  year  first  above  and  before  written,  and  signed 
by  the  said  with  and  in  the  presence  of  said  notar      these  pres- 

ents having  been  first  duly  read  to  the  said  parties. 

(210.) 

Deed  of  Mortgage,  v/ith  Dower,  in  use  in  Ontario. 
This  Indenture,  Made  (/«  </7c//?Vrt/^)  the  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  in  pur- 

suance of  the  Act  respecting  short  forms  of  mortgages,  between  {na7>ie,  fesi- 
dencc,  and  occupation  of  the  morigaa^or)  hereinafter  called  the  mortgagor  of 
the  first  part ;  {name  of  the  luife  of  niort^^agor)  his  wife  of  the  second  partf 


FORMS  OF  MOR  TGA  GES,  E  TC.  5  99 

and  [name,  residence,  and  occupation  of  the  mortgagee)  hereinafter  called  the 
r.iortgagee     of  the  third  part. 

Witnesseth,  That  in  consideration  of  of  lawful  money  of 

Canada,  now  paid  by  the  said  mortgagee  to  the  said  mortgagor  (the  receipt 
whereof  is  hereby  acknowledged),  the  said  mortgagor  do  grant  and  mort- 
gage unto  the  said  mortgagee  heirs  and  assigns  forever,  all  and 
singular  th  certain  parcel  or  tract  of  land  and  premises  situate,  lying, 
and  being  (insert  here  the  description  of  ilie pre7nises  mortgaged,  substan- 
tially as  in  Form  107).  The  said  party  of  tl:e  second  part  hereby  bars  he 
dower  in  the  said  lands. 

Provided,  This  mortgage  to  be  void  on  payment  of  of 

lawful  money  of  Canada,  with  interest  at  per  cent,  per  annum,  as 

follows  :  and  taxes  and  performance  of  statute  labor. 

The  said  mortgagor  covenant  with  the  said  mortgagee  that  the 
mortgagor  will  pay  the  mortgage  money  and  interest,  and  observe  the 
above  proviso. 

That  the  mortgagor  ha  a  good  title  in  fee-simple  to  the  said  lands ; 
and  that  he  ha  the  right  to  convey  the  said  lands  to  the  said  mortgagee  ; 
and  that  on  default  the  said  mortgagee  shall  have  quiet  possession  of  tlic. 
said  lands,  free  from  all  incumbrances. 

And  that  the  said  mortgagor  will  execute  such  further  assurances  of  \V\\ 
said  lands  as  may  be  requisite.     (Title-deeds). 

And  that  the  said  mortgagor  ha  done  no  act  to  encumber  the  sai.\ 
lands. 

And  that  the  said  mortgagor  will  insure  the  buiklings  on  the  said  land* 
to  the  amount  of  not  less  than  dollars  currency. 

And  the  said  mortgagor  do  release  to  the  said  mortgagee  all  claim* 
upon  the  said  lands,  subject  to  the  said  proviso. 

Provided,  That  the  said  mortgagee     ,  in  default  of  payment     for 
months,  may,  upon  giving  notice  in  writing,  enter  upon   and 

lease  or  sell  the  said  lands  ;  provided,  that  the  mortgagee  may  distrain  fcr 
arrears  of  interest ;  provided,  that  in  default  of  the  payment  of  the  intere-t 
hereby  secured,  the  principal  hereby  secured  shall  become  payable  ;  pro- 
vided, that  until  default  of  payment  the  mortgagor  shall  have  quiet  pos- 
session of  the  said  lands. 

In  Witness  Whereof,  The  said  parties  hereto  have  hereunto  set  their 
hands  and  seals. 

Signed,  Sealed,  and  Delivered  in  the  presence  of 

Received   on  the  day  of  the  date  of  this  Indenture, 

County  of  to  wit  : 

I,  {name  of  witness)  of  the  of  in  the  County  of 

make  oath  and  say:    i.  That  I  was  personally  present,  and  did  see  the  within 
instrument   and    duplicate   thereof   duly   signed,  sealed,    and  executed   by 
the  part     thereto.     2.  That  the  said  instrument  and 


6oo  MORTGAGES  OF  LAND. 

duplicate  were  executed  at  the  3.  That  I 

know  the  said  part  4.  That  I  am  a  subscribing  witness  to 

the  said  instrument  and  duphcate. 

Sworn  before  me,  at  of  in  the  County  of 

this  day  of  in  the  year  of  our  Lord  18 

A  ComHiissioner for  taking  affidavits  in  B.  R.,  etc. 

(211  ) 
Full  Deed  of  Mortgage,  for  General  Use. 

This  Indenture,  Made  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between 

{name,  residence,  and  occupation  of  the  niortgago?')  of  the  one  part,  herein- 
after called  the  mortgagor,  and  {name,  residence,  and  occiipation  of  the 
mortgagee),  hereinafter  called  the  mortgagee,  of  tlie  other  part. 

Whereas,  the  said  mortgagor  seized  of,  or  well  entitled  to,  the  inherit- 
'  nee  in  fee-simple,  of  and  in  the  lands  and  premises  hereinafter  described 
-  nd  released  ;  and  having  occasion  to  borrow,  and  take  up  at  interest,  the 
«um  of  ha     applied  to  and  requested  the  said  mortgagee 

lo  lend  and  advance  the  same,  which     he     the  said  mortgagee 

ha     agreed  to  do,  on  having  the  repayment  thereof  secured  to 
l)y  a  mortgage  of  the  said  lands,  tenements,  and  hereditaments,  in  manner 
hereinafter  mentioned. 

Now  this  Indenture  Witnesseth,  That  in  pursuance  of  the  said  agree- 
tnent,  and  in  consideration  of  the  sum  of  to  the  said  mort- 

^;agor  in  hand  paid  by  the  said  mortgagee  at  or  immediately  before  the 
•iealing  and  delivery  of  these  presents,  the  receipt  whereof  the  said  mort- 
gagor do  hereby  acknowledge,  and  of  and  from  the  same,  and  every  part 
thereof,  do  acquit,  release,  and  discharge  the  said  mortgagee 
heirs,  executors,  administrators,  and  assigns,  and  every  of  them,  forever, 
Dv  these  presents,      he     the  said  mortgagor     ha  granted, 

aliened,  released,  and  confirmed,  and  by  these  presents  do 
grant,  aliene,  release,  and  confirm  (and  the  said  doth  hereby 

release  all  her  right  of  dower)  unto  the  said  mortgagee  heirs 

and  assigns,  all  tract     ,  piece     ,  and  parcel    of  land,  hereditaments, 

and  premises,  situate,  lying,  and  being  {here  describe  carefully  the  premises) 

Together  with  all  houses,  buildings,  rights,  members,  and  appurte- 
nances thereunto  belonging,  or  in  anywise  appertaining  ;  and  all  the  estate, 
right,  title,  claim,  and  demand  of  the  said  mortgagor  in,  to,  or  upon  the  said 
lands  and  hereditaments,  or  any  part  thereof. 

To  Have  and  to  Hold  the  said  lands,  tenements,  hereditaments,  and 
premises  hereby  released,  or  intended  so  to  be,  with  their  appurtenances, 
unto  the  said  mortgagee  heirs  and  assigns,  to  the  only  proper 

use  of  the  said  mortgagee  heirs  and  assigns,  forever. 

Subject,  nevertheless,  to  the  proviso  for  redemption   hereinafter  con- 


FORMS  OF  MOR  TGA  GES,  E  TC.  6o  I 

tained;  that  is  to  say,  provided  that  if  the  said  mcrtgagor 
Teirs,   executors,    or   administrators,    shall    pay   unto   the   said    mortgagee 
executors,  administrators,   or  assigns,   the  full   sum  of 
cf  lawful  money  of  (Prince  Edward  Island), 
without  any  abatement  \vlia;ever,  then   these  presents  shall  cease,  and  be 
void    to   all   intents   an.l    purposes    whatever.      And   the   said   mortgagor 
heirs,   executors,  and  administrators,   covenant      with  the  said 
Piortgagce  executors   and   administrators,    that      he      the   said 

mortgagor  heirs,    executors,   or   administrators,    shall    and    wi'l 

piy,  or  cause  to  be  paid,  unto  the  said  mortgagee  executors,  ad- 

m.nistrators,  or  assigns,   the   said  principal  sum  of 

aiid  interest,  at  the  times  and  in  the  manner  hereinbefore  appointed  for  pay- 
ment thereof,  without  any  deduction  or  abatement  whatever,  according  to 
the  true  intent  and  meaning  of  these  presents.  And  also  shall  and  will,  dur- 
ing so  long  as  the  said  sum  of  or  any  part  thereof,  shall 
remain  due  on  the  security  of  these  presents,  pay  or  cause  to  be  paid  to  the 
said  mortgagee  executors,  administrators,  or  assigns,  interest  for 
the  said  sum  of  or  for  so  much  thereof  as  for  the 
time  being  shall  remain  unpaid,  after  the  rate  of  centum  per 
annum,  on  the  clay  of  in  every  year.  And 
also  that  he  the  said  mortgngor  now  in  good  right 
t;)  grant,  release,  and  convey  the  hereditaments  hereby  released,  unto  the 
said  mortgagee  heirs  and  assigns,  in  manner  aforesaid,  accord- 
iug  to  the  true  intent  and  meaning  of  these  presents.  And  further,  that 
il.  shall  and  may  be  lawful  to  and  for  the  s  Jd  mortgagee  heirs 
and  assigns,  after  default  shall  be  made  in  payment  of  the  said  sum  of 
and  interest,  or  any  part  thereof  respectively,  contrary 
to  the  proviso  hereinbefore  contained,  peaceably  to  enter  upon  the  said  her- 
editaments, and  to  hold  and  enjoy  the  same,  without  any  interruption,  claim, 
or  demand  whatsoever.  And  moreover,  that  he  the  said  mortgagor 
and  heirs,  and  all  persons  whatsoever,  having  any  estate  or  inter- 
est in  the  premises,  shall  and  will  at  all  times  hereafter,  during  the  con- 
tinuance of  the  said  sum  of  and  interest,  or  any  part 
thereof,  on  thi§  security,  upon  every  reasonable  request  of  the  said  mortgagee 
executors,  administrators-,  and  assigns,  but  at  the  costs 
and  charges  of  the  said  mortgagor  heirs,  executors,  and 
administrators,  make  and  execute  and  perfect  all  such  further  convevances 
and  assurances  in  the  law  whatsoever,  for  the  further  and  better  conveying 
and  assuring  the  said  hereditaments  hereby  released,  unto  and  to  the  use  of 
the  said  mortgagee  heirs  and  assigns  ;  subject  to  the  said 
proviso,  according  to  the  true  intent  and  meaning  of  these  presents,  as  by  the 
said  mortgagee  heirs  and  assigns,  or  his  or  their  counsel 
in  the  law,  shall  be  reasonably  desired  or  advised  and  required,  and  tendered 
to  be  made  and  executed. 

And  it  is  hereby  further  Provided,    agreed,    and    declared,    by    and 


6o2  MORTGAGES  OF  LAND. 

between  the  said  parties  to  tliese  presents,  that  if  default  shall  be  made  in 
payment  of  the  said  sum  of  or  the  interest  thereof,  or  any 

part  thereof  respectively,  at  t!ie  times  hereinbefore  appointed  for  payment 
of  the  same  respectively,  then  and  in  any  of  such  cases,  and  when  and  so 
often  as  any  such  default  shall  be  made,  the  whole  amount  of  the  said  prin- 
cipal money  shall,  notwithstanding  any  provision  or  condition  of  this  mort- 
gage to  the  contrar}',  immediately  fall  due  and  become  payable,  and  it  shall 
be  lawful  for  the  said  mortgage  executors,  administrators,  or 

assigns,  at  any  time  or  times  after  such  default  shall  have  been  so  made,  with- 
out any  further  consent  on  the  part  of  the  said  mortgagor  heirs 
and  assigns  (without  prejudice,  however,  to  the  right  of  the  said  mortgagee 
heirs  and  assigns,  to  foreclose  the  equity  of  redemption, 
or  to  maintain  any  action  under  the  covenants  hereinbefore  contained),  to 
make  sale  and  dispose  of  the  said  messuages,  land,  and  other  hereditaments 
and  premises  hereinbefore  granted  and  released,  or  expressed  or  intended 
so  to  be,  or  any  part  or  parts  thereof,  either  together  or  in  parcels,  and  either 
by  public  auction  or  private  contract,  with  full  power  upon  any  such  sale  or 
sales  to  make  any  stipulations  as  to  title  or  otherwise,  which  he  or  he 
shall  deem  necessary  ;  and  also  with  full  power  to  buy  in  the  said  heredita- 
ments and  premises,  or  any  part  or  parts  thereof,  at  any  sale  or  sales  by  pub- 
lic auction,  or  to  rescind  any  contract  or  contracts  for  the  sale  of  the  same 
hereditaments  and  premises,  or  any  part  or  parts  thereof,  and  to  re-sell  the 
same  hereditaments  and  premises  which  shall  have  been  so  bought  in,  or  as 
to  which  any  contract  or  contracts  for  sale  shall  have  been  rescinded  as 
aforesaid,  without  being  responsible  for  any  loss  which  may  be  occasioned 
thereby.  And,  for  the  purposes  aforesaid,  or  any  of  them,  it  shall  be  lawful 
for  the  said  mortgagee  executors,  administrators,  or  assigns, 
to  make  and  execute,  or  cause  to  be  made  and  executed,  all  such  agreements, 
deeds,  conve3-ances,  and  assurances  as  he  or  executors, 
administrators,  or  assigns  shall  think  fit.  And  it  is  hereby  also  agreed  and 
declared,  that  upon  any  sale  or  sales  which  shall  be  made  under  the  power 
of  sale  hereinbefore  contained  by  the  executors  or  administrators  of  the  said 
mortgagee  or  by  any  other  person  or  persons  who  may  not  be  seized  of  the 
legal  estate  in  the  hereditaments  and  premises  to  be  sold,  the  heirs  of  the 
said  mortgagee  or  any  other  person  or  persons  in  whom  the  legal  estate  of 
the  same  hereditaments  and  premises,  or  any  part  thereof,  shall  be  vested, 
shall  make  such  conveyances  and  assurances  of  the  same,  for  the  purpose  of 
carrying  the  sale  thereof  into  effect,  as  the  person  or  persons  by  whom  the 
same  shall  be  made  shall  direct. 

Provided  also,  and  it  is  hereby  agreed  and  declared,  that  the  said  mort- 
gagee executors,  administrators,  or  assigns,  shall  not  execute  the 
power  of  sale  hereinbefore  contained  (if  the  sale  or  sales  thereunder  be  by 
public  auction)  unless  and  until  he  or  they  shall  have  first  given 
week's  notice  of  such  sale,  by  publishing  such  notice  at  least  once  in  every 
week  for  successive  weeks,  in  some  newspaper  published  in 


FORMS  OF  MORTGAGES,  ETC.  603 

Provided  also,  and  it  is  hereby  further  agreed  and  declared,  that  upon  any 
sale  purporting  to  be  made  in  pursuance  of  the  aforesaid  power  in  that 
behalf,  the  purchaser  or  purchasers  thereof  shall  not  be  bound  to  see  or 
inquire  whether  either  of  the  cases  mentioned  in  the  clause  or  provision  last.y 
hereinbefore  contained  has  happened,  or  whether  any  money  remains  due  on 
tiie  security  of  these  presents,  or  otherwise,  as  to  the  propriety  or  regularity 
of  such  sale  ;  and  notwithstanding  any  impropriety  or  irregularity  whatso- 
ever in  any  such  sale,  the  same  shall,  as  far  as  regards  the  safety  and  pro- 
tection of  the  purchaser  or  purchasers  thereat,  be  deemed  and  taken  to  be 
within  the  aforesaid  power  in  that  behalf,  and  to  be  valid  and  effectual  accord- 
ingly, and  the  remedy  of  the  said  mortgagor  heirs  or  assigns, 
in  respect  of  any  breach  of  the  clause  or  provision  lastly  hereinbefore  con- 
tained, shall  be  in  damages  only.  And  it  is  hereby  aLo  agreed  and  declared, 
that,  upon  any  such  sale  as  aforesaid,  the  receipt  or  receipts  in  writing 
of  the  said  mortgagee  executors,  administrators,  or  assigns,  for 
the  purchase-money  of  the  hereditaments  and  premises  to  be  sold,  shall  be 
an  effectual  discharge  or  effectual  discharges  to  the  purchaser  or  purchasers 
for  the  money  therein  respectively  expressed  to  be  received,  and  that  such 
purchaser  or  purchasers,  after  payment  of  or  purchase- 
money,  shall  not  be  concerned  to  see  to  the  application  of  such  money, 
or  be  answerable  for  any  loss,  misapplication,  or  non-application  thereof. 
And  it  is  hereby  further  agreed  and  declared  that  the  said  mortgagee 
executors,  administrators,  and  assigns,  shall  hold  all  and  singu- 
lar the  moneys  which  shall  arise  from  any  sale  which  shall  be  made  in 
pursuance  of  the  aforesaid  power  in  that  behalf,  upon  the  trusts  following  ; 
that  is  to  say,  upon  trust  in  the  first  place  by,  with,  and  out  of  the  same 
moneys,  to  reimburse  himself  or  themselves,  and  to  piy  or  discharge  all  the 
costs  and  expenses  attending  such  sale  or  sales,  or  otherwise  to  be  incurred 
in  or  about  the  exercise  of  the  said  power  of  sale  or  in  anywise  relating 
thereto  ;  and,  in  the  next  place,  upon  trust  to  apply  such  moneys  in  c-t 
towards  satisfaction  of  all  and  singular  the  moneys  which  for  the  time  being 
shall  be  due  on  the  security  of  these  presents,  and  then  upon  trust  to  pay  the 
surplus  [if  any]  of  the  said  moneys  unto  the  said  mortgagor  h  heirs  or  assigns, 
for  h  and  their  proper  use  and  benefit.  And  it  is  hereby  also  agreed  and 
declared  that  the  aforesaid  power  of  sale  shall  and  may  be  exercised  by  any 
person  or  persons  who  for  the  time  being  shall  be  entitled  to  receive  and  give 
a  discharge  for  the  mone}  s  which  for  the  time  being  shall  be  due  on  the 
security  of  tliese  presents. 

Provided  Always,  and  it  is  hereby  agreed  and  declared,  that  the  said 
mortgagee,  h  executors,  administrators,  or  assigns,  shall  not  be  answer- 
able nor  accountable  for  any  involuntary  losses  which  may  happen  ^n  or  about 
the  exercise  or  execution  of  the  aforesaid  power  or  trusts,  or  any  of  them. 

In  Witness  Whereof,  the  parties  above  mentioned  have  hereunto  sub- 
scribed their  names  and  affixed  their  seals  to  two  copies  thereof,  interchange- 


604  LEASES. 

ably,  at  on  the  day  of  in  the 

year  of  our  Lord 

{Name  of  mortgagor^     {Seal.) 
{Name  of  mortgagee)     {Seal?) 
Executed  and  interchanged  in  presence  of 
{Names  of  witnesses.) 

^  .  "... 

Heceived,  on  the  day  of  the  date  of  the  within  written  Indenture,  from 

the  within  named  mortgagee,  the  sum  of  being  the  consid- 

eration expressed  in  the  same  Indenture,  to  be  paid  by  him  to  the  within 
named  mortgagor. 
Witness, 

This  Deed  was  acknowledged  before  me  by  therein 

named  apart  from  her  husband,  to  have  been  voluntarily  executed  by  her, 
and  that  she  was  aware  of  the  nature  of  the  contents  thereof. 

Dated  this  day  of  A.D.  18 

J.  P.  for  County. 


CHAPTER  XXXI. 
LEASES. 


A  LEASE  is  a  contract  whereby  one  party  (the  tenant)  takes 
the  possession  of  the  land  and  all  that  is  on  it,  and  the  other 
party  (the  landlord)  gives  possession  of  the  land,  and  reserves 
(that  is,  agrees  to  take)  a  rent,  which  the  tenant  pays  him  by 
way  of  compensation. 

All  things  usually  comprehended  under  the  words  "house," 
"farm,"  "land,"  "store,"  &c.,  pass  to  the  tenant,  where  such 
words  are  used,  unless  there  be  an  express  exception.  And 
inaccuracies  as  to  qualities,  names,  measurements,  or  amounts, 
will  be  corrected,  if  there  be  enough  in  the  lease  to  make  the 
purposes  and  intentions  of  the  parties  certain.  And  letting  to 
hire  anything  to  be  used  carries  with  it  all  those  appurtenances 
and  accompaniments  necessary  for  the  proper  use  and  enjoyment 
of  the  thing  which  belong  to  the  letter. 

A  landlord  is  bound  to  put  his  lessee  into  possession  with 
good  title.  If  he  covenants  "to  renew"  generally,  this  means 
a  renewal  of  the  lease  on  the  same  terms,  but  without  inserting 
in  the  new  lease  another  covenant  of  renewal. 


LEASES. 

A  landlord  is  under  no  legal  obligation  to  repair  the  house, 
unless  he  expressly  agrees  to  do  so.  If  the  house  is  never  so 
much  dilapidated  and  disfigured  as  to  paper,  paint,  etc.,  and 
locks  and  blinds  and  doors  and  windows  are  out  of  order,  and 
the  like,  the  tenant  can  claim  nothing  of  the  landlord.  Even 
if  it  becomes  wholly  uninhabitable  by  no  fault  of  the  house  or 
of  the  landlord,  as  if  it  burns  up,  or  is  blown  down,  or  if  the 
overflow  of  a  stream  ruins  a  field  or  a  farm,  still  the  landlord  is 
not  bound  to  do  anything,  unless  by  special  agreement. 

But  if  the  house  is  uninhabitable  by  its  oAvn  fault,  as  if  it 
has  a  noisome  and  unwholesome  stench,  or,  according  to  one 
case,  if  it  be  overrun  with  rats,  or  so  decayed  as  to  be  open  to 
the  weather,  it  would  seem  to  be  the  law  of  this  country  that 
the  tenant  may  leave  the  house;  always  provided,  however,  that 
the  objection  or  defect  be  not  one  which  the  tenant  knew  or 
anticipated,  or  would  have  known  or  expected  if  he  had  made 
reasonable  inquiry  and  investigation  before  he  took  his  lease. 
And  perhaps  no  tenant  can  leave  his  house,  or  refuse  or  abate 
his  rent,  for  any  objection  or  difficulty  arising  after  he  hires  the 
house.  But,  strange  to  say,  the  important  question  what  thfs 
tenant's  rights  are  in  such  a  case  is  still  uncertain. 

If  the  house  be  wholly  destroyed,  the  tenant  must  still  pay 
rent,  under  an  ordinary  lease ;  because  the  law  looks  upon  the 
land  as  the  principal  thing,  and  the  house  as  secondary.  And 
not  only  so,  but  if  the  tenant  covenants  "to  return  and  rede- 
liver the  house  at  the  end  of  the  term,  in  good  order  an^t 
condition,  reasonable  wear  and  tear  only  excepted,"  he  would 
be  bound  under  this  agreement  to  rebuild  the  house  if  it  were 
burned  down.  But  recently  all  well-drawn  leases  haye  clauses 
providing  that  the  rent  shall  cease  or  be  abated  while  the 
premises  are  uninhabitable  from  fire  or  any  other  unavoidable 
calamity.  A  similar  exception  is  added  to  the  clause  about 
returning  the  house  at  the  end  of  the  lease.  If  this  exception 
be  in,  a  tenant  is  not  bound  to  rebuild,  even  if  the  house  be 
burned  through  the  carelessness  of  himself  or  his  servants. 

A  tenant  of  a  room,  or  of  a  suite  of  chambers,  is  entitled  to 
the  use  of  all  the  appurtenances  and  accommodations  which 
fairly  go  with  it,  as  of  the  front  door  and   entry,  water-closets, 


6o6  LEASES. 

and  of  all  windows,  etc.,  proper  to  the  enjoyment  of  what  he 
hires.  But  an  express  agreement  about  all  these  things,  and 
cellar-room,  pump,  and  the  like,  is  always  safest. 

The  tenant  is  not  bound  to  make  general  repairs  without  an 
express  agreement.  But  he  must  make  such  as  are  necessary 
to  preserve  the  house  from  injury,  as  from  rain,  if  shingles  or 
slates  are  blown  off  or  glass  broken.  And  he  would  be  bound 
even  for  ornamental  repairs,  as  paper  and  paint,  under  a  cove- 
nant to  return  "in  good  order." 

The  tenant  of  a  farm  is  bound,  without  express  covenants, 
to  manage  and  cultivate  the  same  in  such  a  manner  as  good 
husbandry  and  the  usual  course  of  management  of  such  farms 
in  his  vicinity  would  require. 

The  times  for  payment  of  rent  are  usually  specified  in  the 
hiase,  if  not,  they  would  be  governed  by  the  usage  of  the 
I  ountry,  if  there  were  any  of  sufficient  distinctness  and  force. 

A  tenant  under  a  lease  which  says  nothing  about  underlet- 
ting has  a  perfect  right  to  underlet,  remaining  himself  bound 
for  his  rent  to  his  landlord. 

A  tenant  is  not  responsible  for  taxes,  unless  it  is  expressly 
agreed  in  the  lease  that  he  shall  be. 

If  there  be  a  clause  prohibiting  him  from  underletting  or 
assigning,  and  he  agrees  not  to,  nevertheless  he  may  do  so 
without  forfeiting  the  land ;  but  he  will  be,  as  before,  liable  for 
rent ;  and  besides  this,  he  will  be  responsible  in  an  action  for 
any  damages  which  the  landlord  can  show  that  he  has  sustained 
by  such  underletting. 

It  is  usual  to  go  further  in  the  lease  than  this,  and  provide 
that  such  underletting  shall  make  a  forfeiture  of  the  lease,  and 
authorize  the  landlord  to  enter  upon  the  premises  and  turn  the 
tenant  out.  Where  there  is  this  covenant,  if  the  tenant  now 
underlets,  the  landlord  cannot  avail  himself  of  the  clause  of 
forfeiture  and  afterwards  hold  the  tenant  for  his  rent.  He  may 
either  hold  him  for  his  rent,  and  also  for  damages,  or  he  may 
terminate  the  lease;  but  cannot  do  both.  That  is,  if  he  con- 
tinues to  hold  the  tenant  responsible  for  rent,  he  cannot  prevent 
the  tenant's  letting  somebody  else  occupy  the  house  and  pay  to 
him  (the  tenant)  the  rent  which  he  pays  over. 


LEASES.  607 

A  tenant  of  a  farm,  if  his  lease  is  terminated  by  any  event 
which  was  uncertain,  and  which  he  could  neither  foresee  nor 
control,  is  entitled  to  the  annual  crop  which  he  sowed  while  his 
interest  in  and  right  to  the  farm  continued. 

If  a  lease  be  for  a  certain  time,  the  tenant  loses  all  right  or 
interest  in  the  land  or  premises  when  that  time  comes,  and  he 
must  leave,  or  the  landlord  may  turn  him  out  at  once.  But  he 
is  a  tenant  at  will,  if  he  holds  over  after  a  lease  with  consent, 
or  occupies  the  land  or  house  or  store  without  a  lease  but  with 
consent  and  an  oral  bargain ;  and  a  tenant  at  will  cannot  leave, 
nor  can  he  be  turned  out,  without  a  notice  to  quit.  The  law 
on  this  subject  is  not  uniform.  In  general,  hov/ever,  it  is  this. 
If  rent  is  payable  quarterly,  or  not  more  frequently,  then  there 
must  be  a  quarter's  notice.  If  rent  is  payable  oftener,  then  the 
notice  must  be  as  long  as  the  period  of  payment.  Thus,  if 
rent  is  payable  monthly,  there  must  be  a  month's  notice  ;  if 
weekly,  a  week's  notice.  But  the  notice  must  terminate  on  a 
day  when  the  rent  is  payable.  It  may  be  given  at  any  time, 
but  operates  only  after  the  required  interval  or  period  between 
two  payments.  Thus,  if  a  tenant  whose  lease  terminates  on  the 
3 1st  of  December  holds  over  by  consent,  and  pays  rent  quarterly, 
and  the  landlord  wishes  that  he  should  leave  the  house  on  the 
last  day  of  September,  he  may  give  notice  on  the  preceding 
30th  day  of  June,  or  any  day  preceding  that.  But  if  he  gives 
notice  on  any  day  before  the  30th  of  June,  the  tenant  will  still 
have  a  right  to  stay  until  the  30th  of  September.  Properly,  the 
notice  should  specify  the  day,  and  the  right  day,  when  the 
tenant  must  leave ;  and  should  be  in  writing. 

Where  the  rent  is  in  arrear,  the  notice  to  quit  may  be  more 
brief;  the  statutes  of  the  different  States  vary  on  this  point, 
but  a  frequent  period  is  fourteen  days.  And  if  notice  to  quit  is 
given  because  the  rent  is  unpaid,  it  may  be  given  at  any  time 
and  will  operate  at  the  end  of  the  period  which  the  law  desig 
nates ;  but  it  should  specify  the  day  on  which  the  tenant  must 
quit. 

A  tenant  may  give  notice  of  his  intention  to  quit,  and 
generally  it  will  be  subject  to  the  same  rules  already  stated  in 
reference  to  the  notice  given  by  a  landlord.     A  tenant  should 


6o8  LEASES. 

give  his  notice  to  the  party  to  whom  he  is  bound  to  cay  rent,  or 
to  an  authorized  agent  of  that  party. 

FIXTURES. 

It  is  quite  important  that  both  tenant  and  landlord  should 
have  some  knowledge  of  the  law  of  fixtures;  for  this  tells  them 
what  things  the  tenant  may  take  away  and  what  he  cannot. 
Yox  there  are  many  things  which  a  tenant  may  add,  and  after- 
wards remove,  and  many  which  he  cannot  remove.  The  method 
of  affixing  them  may  be  a  useful  criterion,  as  it  indicates  the 
purpose  of  removal  or  otherwise.  If  with  screws,  or  in  such 
a  way  as  to  show  that  removal  was  intended,  things  may  be 
taken  away,  when,  if  the  same  things  were  fastened  more  per- 
manently, they  could  not  be.  In  modern  times  the  rule  in 
favor  of  the  tenant  seems  to  extend  as  far  as  this:  whatever  he 
has  added,  and  can  remove,  leaving  the  premises  entirely 
restored  and  in  as  good  order  as  if  he  had  not  removed  it,  that 
he  may  take  away.  Among  the  things  held  to  be  removable, 
in  different  adjudged  cases,  are  these :  ornamental  chimney- 
pieces  ;  coffee-mills  ;  cornices  screwed  on ;  furnaces ;  fire-frames ; 
stoves ;  iron  backs  to  chimneys  ;  looking-glasses ;  pumps ;  gates  ; 
rails  and  posts ;  barns  or  stables  on  blocks. 

Among  those  held  not  removable  are  these:  barns  fixed  in 
the  ground ;  benches  fastened  to  the  house  ;  trees,  plants,  and 
hedges,  not  belonging  to  a  gardener  by  trade  ;  conservatory 
strongly  affixed  ;  glass  windows  ;  locks  and  keys. 

But  almost  every  one  of  these  might  be  removable,  or  not, 
according  to  the  intent  of  the  parties,  and  the  rule  above  stated, 
of  removableness  with  or  v/ithout  injury. 

If  a  man  sells  a  house,  the  law  of  fixtures  is  construed  far 
more  severely  against  him  than  against  a  tenant  who  leaves  a 
house  ;  that  is,  the  seller  must  permit  the  buyer  to  hold  a  great 
many  things  which  an  outgoing  tenant  might  remove.  Of 
course,  a  seller  may  take  what  he  will  from  his  house  before  he 
sells  it,  or  make  what  bargain  the  parties  choose  to  make  about 
the  fixtures.  But  if  he  makes  no  such  bargain,  and  sells  the 
house,  he  cannot  then  take  from  the  house  what  a  tenant  who 
put  them  there  might  take. 


LEASES.  609 

In  favor  of  trade  and  manufactures,  the  law  permits  almost 
anything  which  was  put  in  by  a  tenant  for  such  purposes  to  be 
taken  away,  if  the  premises  can  be  restored  substantially  to 
their  original  condition. 

In  most  of  the  States  leases  for  a  term  of  more  than  one 
year  must  be  in  writing,  otherwise  they  take  effect  only  as  ten- 
ancies at  will,  even  as  between  the  parties  thereto. 

In  the  following  named  States  and  Territories,  such  leases 
must  be  executed,  acknowledged,  and  recorded  in  the  same 
manner  as  deeds,  otherwise  they  are  invalid  as  against  third 
parties  without  notice,  viz.  :  Arizona,  Arkansas,  California, 
Colorado,  Connecticut,  Delaware,  Idaho,  Iowa,  Kansas,  Ken- 
tucky, Mississippi,  Missouri,  Montana,  Nebraska,  Nevada,  North 
Dakota,  Oregon,  Rhode  Island,  South  Carolina,  South  Dakota, 
Texas,  Wisconsin. 

In  Florida,  leases  for  more  than  two  years  must  be  recorded. 

In  Indiana,  Minnesota,  New  York,  and  Tennessee,  leases 
for  more  than  three  years  must  be  recorded. 

In  Kentucky,  Virginia,  and  West  Virginia,  leases  for  more 
than  five  years  must  be  recorded. 

In  Maine,  Maryland,  Massachusetts,  and  New  Hampshire, 
leases  for  more  than  seven  years  must  be  recorded. 

In  New  Jersey,  leases  for  more  than  three  years  must  be  in 
writing. 

In  Pennsylvania,  leases  for  more  than  three  years  must  be 
in  writing,  and  for  more  than  twenty-one  years  must  be  recorded. 

In  New  Mexico,  Utah,  Vermont,  Washington,  and  Wyom- 
ing, leases  must  be  executed  and  recorded  in  the  same  manner 
as  deeds. 

In  North  and  South  Dakota,  leases  of  agricultural  land  are 
limited  to  ten  years,  those  of  city  lots  to  twenty  years. 


The  remarks  in  respect  to  the  variety  of  forms  which  will  be 
found  at  the  close  of  the  chapter  on  deeds  of  land,  are  equally 


Oio  LEASES. 

applicable  to  forms  of  leases,  and  should  be  read  in  connection 
with  the  following  forms. 

(212.) 
A  Short  form  of  a  Lease. 

This  Indenture,  Made  the  day  of  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and 

Witnesseth,  That  I,  {name  and  residence  of  the  lessor)  do  hereby  lease, 
demise,  and  let  unto  {tiavie  and  residence  of  the  lessee)  a  certain  parcel  of 
Fand,  in  the  city  (or  town)  of  County  of  and  State  of 

with  all  the  buildino;s  tliereon  standing,  and  the  appurtenances 
to  the  same  belonging,  bounded  and  described  as  follows  {or,  a  certain  house 
in  said  city-,  giving  the  street  and  number,  with  tJie  laiid  under  and  adjoining 
the  same.) 

{The  premises  need  not  be  described  quite  so  min^ttely  or  fully  as  is  proper 
in  a  deed  or  mortgage  of  land,  but  must  be  so  described  as  to  identify  them 
perfectly,  aitd  make  it  certain  just  what  premises  are  leased^ 

To  Hold  for  the  term  of  from  the  day  of 

yielding  and  paying  therefor  the  rent  of 

And  said  lessee  does  promise  to  pay  the  said  rent  in  four  quarterlTr 
payments  on  the  day  of  {or  state  otherwise  jusr 

when  the  payments  of  rent  are  to  be  made)  and  to  quit  and  deliver  up  ther 
premises  to  the  lessor  or  his  attorney,  peaceably  and  quietly  at  the  end  of 
the  term,  in  as  good  order  and  condition,  reasonable  use  and  wearing  thereof, 
fire  and  other  unavoidable  casualties  excepted,  as  the  same  now  are  or  may 
be  put  into  by  the  said  lessor,  and  to  pay  the  rent  as  above  stated,  and  all 
taxes  and  duties  levied  or  to  be  levied  thereon  during  the  term,  and  also  the 
rent  and  taxes  as  above  stated,  for  such  further  time  as  the  lessee  may  hold 
the  same,  and  not  make  or  suffer  any  waste  thereof  ;  nor  lease,  nor  underlet, 
nor  permit  any  other  person  or  persons  to  occupy  or  improve  the  same,  or 
make  or  suffer  to  be  made  anv  alteration  therein  but  with  the  approbation  of 
the  lessor  thereto  in  writing,  having  been  first  obtained;  and  that  the  lessor 
may  enter  to  view,  and  make  improvements,  and  to  expel  the  lessee,  if  he 
shall  fail  to  pay  the  rent  and  taxes  as  aforesaid,  or  make  or  suffer  any  strip 
or  waste  thereof. 

In  "Witness  Whereof,  The  said  parties  have  hereunto  interchangeably 
set  their  hands  and  seals  the  day  and  year  first  above  written. 

{Signatures.)     (Seals.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

(213.) 
A  fuller  Form,  with  a  Provision  for  Abatement  of  Rent. 

This  Indenture,   Made  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  by  and  between 

{name  and  residence  of  lessor)  and  {tiame  and  residence  of  lessee) 


FORMS  OF  LEASES.  C\l 

"WitneSjeth,  That  the  said  (.name  of  lessor)  does  hereby  lease,  demise, 
and  let  unto  the  said  (jiaiiie  of  lessee)  (describe  the  premises  as  directed  in 
Form  21 1). 

To  Hold  for  the  Term  of  commencing  the 

div  of  A.D.  one  thousand  eight  hundred  and 

the  said  lessee  or  those  claiming  under  him,  yiehling  and  paying  rent  therefor 
the  sum  of  for  each  and  every  yeur,  and  after  the  same  rate  for 

any  part  cf  a  year. 

And  the  said  lessee,  for  himself,  his  heirs,  executors,  and  administrators, 
does  hereby  covenant  to  and  with  the  said  lessor,  and  his  heirs  and  assigns, 
that  he  or  they  will  pay  the  said  rent  of  in  equal  sums  of 

the  first  of  which  payments  shall  be  made  on  the  day  of 

A  D.  one  thousand  eight  hundred  and  and  that  he  or  they  will  pay 

rent  after  the  same  rate  for  such  further  time  as  he  the  said  lessee,  or  those 
claiming  under  him,  may  hold  the  premises  ;  that  he  or  they  will  from  time 
to  time,  upon  request  by  the  lessor,  or  his  heirs  or  assigns,  pay  to  them  such 
sum  or  sums  of  money  as  shall  be  equal  to  the  amount  of  the  taxes  and 
duties,  and  water-taxes,  that  shall  be  levied  or  assessed  on  the  demised 
premises  for  each  year  and  part  of  a  year  during  the  term  aforesaid,  and 
during  such  further  time  as  the  said  lessee  and  those  claiming  under  him 
may  hold  the  premises ;  that  he  or  they  will  not  suffer  nor  comm.it  any  strip 
or  waste  in  the  premises  ;  that  he  or  they  will  not  assign  this  lease,  nor 
imderlet  the  whole  or  any  part  of  the  premises,  to  any  person  or  persons  ; 
and  that  no  alterations  or  additions  shall  be  made  during  the  term  aforesaid, 
in  or  to  the  same,  without  the  consent  of  the  said  lessor,  or  of  those  having 
his  estate  in  the  premises,  being  first  obtained  in  writing,  allowing  thereof; 
and  also  that  it  shall  be  lawful  for  the  said  lessor,  and  those  having  his 
estate  in  the  premises,  at  seasonable  times  to  enter  into  and  upon  the  same 
to  examine  the  condition  thereof:  and  further,  that  he  the  said  lessee,  and 
his  representatives,  shall  and  will,  at  the  expiration  of  said  term,  peaceably 
yield  up  unto  the  said  lessor,  or  those  having  his  estate  therein,  all  and 
singular  the  premises,  and  all  future  erections  and  additions  to  cr  upon  the 
same,  in  as  good  order  and  condition,  in  all  respects  Treasonable  wearing 
and  use  thereof,  and  damage  by  fire,  and  other  unavoidable  casualties 
excepted)  as  the  same  now  are,  or  maybe  put  into  by  the  said  lessor  or  those 
having  his  estate  in  the  premises. 

Provided  always,  and  these  presents  are  upon  this  condition,  that  if 
the  said  rent  shall  be  in  arrear,  or  the  said  lessee  or  his  representatives  or 
assigns  do  or  shall  neglect  or  fail  to  perform  and  observe  any  or  either  cf 
the  above  covenants  hereinbefore  contained,  which  on  his  or  their  part  are 
to  be  performed,  then  and  in  either  of  said  cases,  the  said  lessor,  or  those 
having  his  estate  in  the  said  premises,  lawfully  may,  immediately  or  at  any 
time  thereafter,  and  while  such  neglect  or  default  continues,  and  without 
further  notice  or  demand,  enter  into  and  upon  the  said  premises,  or  any 
part  thereof,  in  the  name  of  the  whole,  and  repossess  the  same  as  of  his 


6i2  LEASES. 

former  estate,  and  expel  the  said  lessee  and  those  claiming  under  him,  and 
remove  his  or  their  effects  (forcibly  if  necessary)  without  being  taken  or 
deemed  guilty  of  any  manner  of  trespass,  and  without  prejudice  to  any 
remedies  which  might  otherwise  be  used  for  arrears  of  rent,  or  preceding 
breach  of  covenant. 

And  provided  also,  that  in  case  the  premises,  or  any  part  thereof,  shall, 
during  said  term,  be  destroyed  or  damaged  by  fire  or  other  unavoidable 
casualty,  so  that  the  same  shall  be  thereby  rendered  u  fit  for  use  and  habi- 
tation, then,  and  in  such  case,  the  rent  hereinbefore  reserved,  or  a  just  and 
proportionate  part  thereof,  according  to  the  np.ture  and  extent  of  the  injuries 
sustained,  shall  be  suspended  or  abated  until  the  said  premises  shall  have 
been  put  in  proper  condition  for  use  and  habitation  by  the  said  lessor,  or 
these  presents  shall  thereby  be  determined  and  ended  at  the  election  of  the 
said  lessor  or  his  legal  representatives. 

In  Testimony  Whereof,  The  said  parties  have  set  their  hands  and 
seals  on  the  day  and  year  first  above  written,  to  this  and  to  another  instru- 
ment of  like  tenor  and  date. 

{Signatures.)     {Seals.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

(214.) 
A  Short  Form  of  Lease,  in  use  in  the  Western  States. 

This  Indenture,   Made  this  day  of  iS     , 

between  {name  and  residence  of  the  lessor)  party  of  the  first  part,  and  {name 
and  residence  of  the  lessee)  party  of  the  second  part,  witnesseth  that  the  said 
party  of  the  first  part,  in  consideration  of  the  covenants  of  the  said  party  of 
the  second  part,  hereinafter  set  forth,  do  by  these  presents  lease  to  the 
said  party  of  the  second  part  the  following-described  property,  to  wit 
{describe  the  property  as  directed  in  Form  211). 

To  Have  and  to  Hold  the  same  to  the  said  party  of  the  second  part, 
from  the  day  of  18     ,  to  the  day  of 

18  .  And  the  said  party  of  the  second  part,  in  consideration 
of  the  leasing  the  premises  as  above  set  forth,  covenants  and  agrees  with 
the  party  of  the  first  part  to  pay  the  said  party  of  the  first  part,  as  rent  for 
the  same,  the  sum  of  dollars,  payable  as  follows,  to  wit  {here  state 

the  times  and  terms  of  payjnent,  much  as  in  Forni  211). 

The  said  party  of  the  second  part  further  covenants  with  the  said  party 
of  the  first  part,  that  at  the  expiration  of  the  time  mentioned  in  this  lease, 
peaceable  possession  of  tlie  said  premises  shall  be  given  to  said  party  of  the 
first  part,  in  as  good  condition  as  they  now  are,  the  usual  wear,  inevitable 
accidents,  and  loss  by  fire  excepted  ;  and  that  upon  the  non  payment  of  the 
wliole  or  any  portion  of  the  said  rent  at  the  time  when  the  same  is  above 
jjromised  to  be  paid,  the  said  party  of  the  first  part  may,  at  his  election, 
either  distrain  for  said  rent  due,  or  declare  this  lease  at  an  end,  and  recover 


FORMS  OF  LEASES. 


613 


possession  as  if  the  same  was  held  by  forcible  detainer  :  the  said  party  oi 
(he  second  part  hereby  waiving  any  notice  of  such  election,  or  any  demand 
i  )r  the  possession  of  said  premises. 

The  covenants   herein  shall  extend  to  and  be  binding  upon  the  heirs, 
executors,  and  administrators  of  the  parties  to  this  lease. 
Witness  the  hands  and  seals  of  the  panics  aforesaid. 

(Signattct'e  of  lessor.)     {Seal) 
{Signature  of  lessee.)     {Seal.) 

(215.) 
A  Lease  of  City  Property,  in  use  in  Chicago. 

This  Indenture,  Made  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  between  {name 

of  the  lessor)  of  the  city  of  in  the  Count}-  of  and  State  of 

party  of  the  first  part,  and  {na?ne  and  residence  of  the  lessee)  of 

the  second  part, 

Witnesseth,  That  the  said  party  of  the  first  part,  for  and  in  considera- 
tion of  the  covenants  and  agreements  hereinafter  mentioned,  to  be  kept  and 
performed  by  the  said  party  of  the  second  part,  or  his  executors,  adminis- 
trators, and  assigns,  has  demised  and  leased  to  the  said  party  of  the  second 
part  all  those  premises  situate,  lying,  and  being  in  the  city  of  Chicago,  in  the 
Cou'nty  of  Cook,  and  State  of  Illinois,  and  known  and  described  as  follows, 
to  wit  {here  describe  the  pre7nises  as  directed  in  Form  211). 

To  Have  and  to  Hold  the  said  above-described  premises,  with  the 
appurtenances,  unto  the  said  party  of  the  second  part,  and  his  executors, 
administrators,  and  assigns,  from  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  for  and  during, 

and  until  the  day  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  the  said  party-  of  the  second  part 

paying  rent  therefor,  as  hereinafter  stated. 

And  the  said  party  of  the  second  part,  in  consideration  of  the  leasing  the 
premises  aforesaid,  by  the  said  party  of  the  first  part,  to  the  said  party  of 
the  second  part,  does  covenant  and  agree  with  the  said  party  of  the  first 
part,  and  his  heirs,  executors,  administrators,  and  assigns,  to  pay  the  said 
party  of  the  first  part,  at  the  house  {or  ojfce  or  store)  of  the  said  party  of  the 
first  part,  numbered         in  Street,  Chicago,  or  at  the  house  or  office  of 

his  assigns,  as  rent  for  the  said  demised  premises,  the  sum  of  {st:''.te  the  ivJiole 
annual  rent)  payable  as  follows  {here  state  the  times  and  tertns  of  the  pay- 
ments  of  rent). 

And  it  is  further  agreed  by  the  said  party  of  the  second  part,  in  consid- 
eration of  the  leasing  of  the  premises,  that  the  said  party  of  the  second  part 
shall  and  will  pay,  or  cause  to  be  paid,  promptly,  as  soon  as  the  same  becomes 
due,  all  assessments  for  water-rents  that  may  be  levied  upon  said  demised 
premises,  during  the  continuance  of  this  lease,  by  the  Board  of  Water  Com- 
missioners of  the  city  of  Chicago,  and  save  the  said  premises  and  the  said 


6i4 


LEASES. 


party  of  the  first  part  harmless  therefrom,  and  that  he  \s\\\  keep  said 
premises  in  a  clean  and  healthful  condition,  in  accordance  with  the  ordinances 
of  the  city  and  the  direction  of  the  Sewerage  Commissioners. 

And  the  said  party  of  the  second  part  hereby  covenants  and  agrees,  in 
case  of  delay  in  payment  of  any  water-rent  levied  upon  said  premises  during 
said  term,  to  pay  said  party  of  the  first  part,  as  liquidated  damages  for  such 
breach  of  covenant,  double  the  sum  of  such  rent  so  assessed  upon  said  prem 
ises  as  aforesaid. 

And  the  said  party  of  the  second  part  further  covenants  with  the  said 
party  of  the  first  part,  that  at  the  expiration  of  the  time  in  this  lease  men- 
tioned, he  will  yield  up  the  said  demised  premises  to  the  said  party  of  the 
first  part,  in  as  good  condition  as  when  the  same  were  entered  upon  by  tlie 
said  party  of  the  second  part,  loss  by  fire  or  inevitable  accident,  and  ordinary 
wear  excepted. 

It  is  further  agreed  by  the  said  party  of  the  second  part,  that  neithei 
he  nor  his  legal  representatives  will  underlet  said  premises,  or  any  part 
thereof,  or  assign  this  lease,  without  the  written  assent  of  said  party  of  the 
first  part,  first  had  and  obtained  thereto. 

It  is  Expressly  Understood  and  Agreed,  B}-  and  between  the  parties 
aforesaid,  that  if  the  rent  above  reserved,  or  any  part  thereof,  shall  be  behind 
or  unpaid  on  the  day  and  at  the  place  of  payment  whereon  the  same  ought 
to  be  paid,  as  aforesaid,  or  if  default  shall  be  made  in  any  of  the  covenants 
herein  contained,  to  be  kept  by  the  said  party  of  the  second  part,  or  his 
executors,  administrators,  and  assigns,  it  shall  and  may  be  lawful  for  the 
said  party  of  the  first  part,  or  his  heirs,  executors,  administrators,  agent, 
attorney,  or  assigns,  at  his  or  their  election,  to  declare  said  term  ended,  and 
the  said  demised  premises,  or  any  part  thereof,  either  with  or  without  process 
of  law,  to  re-enter,  and  the  said  party  of  the  second  part,  or  any  other  person 
or  persons  occupying,  in  or  upon  the  same,  to  expel,  remove,  and  put  out, 
using  such  force  as  may  be  necessary  in  so  doing,  and  the  said  premises 
again  to  repossess  and  enjoy  as  in  his  or  their  first  and  former  estate  ;  and 
it  shall  be  the  duty  of  the  said  party  of  the  second  part,  his  executors,  admin- 
istrators, or  assigns,  to  be  and  appear  at  the  said  place  above  specified  for 
the  payment  of  said  rent,  and  then  and  there  tender  and  pay  the  same  as  the 
same  shall  fall  due  from  time  to  time,  as  above,  to  the  said  party  of  the  first 
part,  or  his  agent  or  assigns ;  or  in  his  or  their  absence,  if  the  party  of  the 
second  part,  or  his  legal  representatives,  shall  offer  to  pay  the  same  then  and 
there,  such  offer  shall  prevent  such  forfeiture. 

And  it  is  expressly  understood  that  it  shall  not  be  necessary  in  any  event 
for  the  party  of  the  first  part,  or  his  assigns,  to  go  on  or  near  the  said  demised 
premises  to  demand  said  rent,  or  elsewhere  than  at  the  place  aforesaid.  And 
in  the  event  of  any  rent  being  due  and  unpaid,  whether  before  or  after  such  for- 
feiture declared,  to  distrain  for  any  rent  that  may  be  due  thereon,  upon  any 
property  belonging  to  the  said  party  of  the  second  part,  whether  the  same 
be  exempt  from  execution  or  distress  by  law  or  not,  and  the  said  party  of 


FOR,\fS  OF  LEA SES.  f,  y  - 

the  second  part,  in  that  case,  hereby  waives  all  legal  rights  which  he  may 
have  to  hold  or  retain  any  such  property,  under  any  exemption  laws  now  in 
lorce  in  this  State,  or  in  any  other  way.  Meaning  and  intending  hereby  to 
give  to  the  said  party  of  the  first  part,  and  his  heirs,  executors,  administrators, 
and  assigns,  a  valid  and  first  lien  upon  any  and  all  the  goods,  chattels,  or 
other  property  belonging  to  the  said  party  of  the  second  part,  as  security  for 
the  payment  of  said  rent,  in  manner  aforesaid,  anything  hereinbefore  con- 
tained to  the  contrary  notwithstanding.  And  if  at  any  time  said  term  sha!l 
be  ended  at  such  election  of  said  party  of  the  first  part,  or  his  heirs,  execu- 
tors,  administrators,  or  assigns,  as  aforesaid,  or  in  any  other  way,  the  said 
party  of  the  second  part,  for  himself  and  his  executors,  administrators,  and 
assigns,  does  hereby  covenant,  promise,  and  agree  to  surrender  and  deliver 
up  said  above-described  premises  and  property,  peaceably  to  the  said  party 
of  the  first  part,  or  his  heirs,  executors,  administrators,  and  assigns,  imme- 
diately upon  the  determination  of  said  term  as  aforesaid  ;  and,  if  he  shall 
remain  in  the  possession  of  the  same  days  after  notice  of  such 

default,  or  after  the  termination  of  this  lease,  in  any  of  the  ways  above 
named,  he  shall  be  deemed  guilty  of  a  forcible  detainer  of  said  demised 
premises  under  the  statute,  and  shall  be  subject  to  all  the  conditions  and 
provisions  above  named,  and  to  eviction  and  removal,  forcibly  or  otherwise, 
with  or  without  process  of  law,  as  above  stated ;  and  in  order  to  enforce  a 
forfeiture  of  this  lease  for  non-payment  of  rent  when  due,  no  demand  for 
rent  when  due  shall  be  required,  any  demand  being  hereby  expressly 
waived. 

And  it  is  further  covenanted  and  agreed  by  and  between  the  parties,  that 
the  party  of  the  second  part  shall  pay  and  discharge  all  costs  and  attorney's 
fees  and  expenses  that  shall  arise  from  enforcing  the  covenants  of  this  inden- 
ture by  the  party  of  the  first  part. 

In  Testimony  Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

{Signature  of  lessor)        (Sea/.) 
(Signattire  of  lessee.)        [Seal.) 

In  Presence  of 

(216.) 

A  Lease  -with  Provisions  for  Taxes  and  Assessments. 
This  Indenture,  Made  the  day  of  in  the 

year  one  thousand  eight  hundred  and  between  (name  and  residence 

of  lessor)  of  the  first  part,  and  (name  and  residence  of  lessee)  of  the  second 
part,  witnesseth,  that  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  rents,  covenants,  and  agreements  hereinafter  mentioned,  reserved,  and 
contained,  on  the  part  and  behalf  of  the  said  party  of  the  second  part,  his 
executors,  administrators,  and  assigns,  to  be  paid,  kept,  and  performed,  has 
granted,  demised,  and  to  farm  letten,  and  by  these  presents  does  grant, 
demise,  and  to  farm  let,  unto  the  said  party  of  the  second  part,  and  his 
executors,  administrators,  and  assigns,  all  (describe  the  premises  as  directed 
til  Form  2 1 1 ). 


6i6  LEASES. 

To  Have  and  to  Hold  the  said  above  meniioned  and  des/  ribed  premises, 
with  the  appurtenances,  unto  the  said  party  of  the  second  part,  his  executors, 
Administrators,  and  assigns,  from  the  day  of  one 

thousand  eight  hundred  and  for  and  during  and  until  the  full 

end  and  term  of  thence  next  ensuing ;  and  fully  to  be  complete 

and  ended,  yielding  and  paying  therefor  unto  the  said  party  of  the  first  part, 
his  heirs  or  assigns,  yearly,  and  every  year  during  the  said  term  hereby 
granted,  the  yearly  rent  or  sum  of  lawful  money  of  the  United 

States  of  America,  in  equal  quarter-yearly  payments,  to  wit :  on  the  first  day 
of  {iiaine  the  months)  in  each  and  every  of  the  said  years  :  Provided 
always,  nevertheless,  that  if  the  yearly  rent  above  reserved,  or  any  part 
thereof,  shall  be  behind  or  unpaid  on  any  day  of  payment  whereon  the  same 
ought  to  be  paid  as  aforesaid ;  or  if  default  shall  be  made  in  any  of  the 
covenants  herein  contained,  on  the  part  and  behalf  of  the  said  party  of  the 
second  part,  his  executors,  administrators,  and  assigns,  to  be  paid,  kept,  and 
performed,  then  and  from  thenceforth  it  shall  and  may  be  lawful  for  the  said 
party  of  the  first  part,  his  heirs  or  assigns,  into  and  upon  the  said  demised 
premises,  and  everj'  part  thereof,  wholly  to  re-enter  and  remove  all  persons 
therefrom,  and  the  same  to  have  again,  repossess,  and  enjoy,  as  in  his  or 
their  first  and  former  estate,  anything  hereinbefore  contained  to  the  contrary 
thereof  in  anywise  notwithstanding.  And  the  said  party  of  .the  second 
part,  for  himself  and  his  heirs,  executors,  and  administrators,  does  cove- 
nant and  agree,  to  and  with  the  said  party  of  the  first  part,  his  heirs  and 
assigns,  by  these  presents,  that  the  said  party  of  the  second  part,  his  executors, 
administrators,  or  assigns,  shall  and  will  yearly,  and  every  year  during  the 
said  term  hereby  granted,  well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
said  party  of  the  first  part,  his  heirs  or  assigns,  the  said  yearly  rent  above 
reserved,  on  the  days  and  in  manner  limited  and  prescribed  as  aforesaid,  for 
the  payment  thereof,  without  any  deduction,  fraud,  or  delay,  according  to  the 
true  intent  and  meaning  of  these  presents.  And  that  the  said  party  of  the  sec- 
ond part,  his  executors,  administrators,  or  assigns,  shall  and  will,  at  their  own 
proper  costs  and  charges,  bear,  pay,  and  discharge  all  such  taxes,  duties, 
and  assessments  whatsoever,  as  shall  or  may,  during  the  said  term  hereby 
granted,  be  charged,  assessed,  or  imposed  upon  the  said  demised  premises. 

And  that  on  the  last  day  of  the  said  term,  or  other  sooner  determination 
of  the  estate  hereby  granted,  the  said  party  of  the  second  part,  his  executors, 
administrators,  or  assigns,  shall  and  will  peaceably  and  quietly  leave,  sur- 
render, and  yield  up  unto  the  said  party  of  the  first  part,  his  heirs  or  assigns, 
all  and  singular  the  said  demised  premises. 

And  the  said  party  of  the  first  part,  for  himself  and  his  heirs,  executors, 
and  administrators,  does  covenant  and  agree  to  and  with  the  said  party  of 
the  second  part,  his  executors,  administrators,  and  assigns,  by  these  pres- 
ents, that  the  said  party  of  the  second  part,  his  executors,  administrators,  or 
assigns,  paying  the  said  yearly  rent  above  reserved,  and  performing  the 
covenants  and  agreements  aforesaid  on  his  and  their  part,  the  said  party 


FORMS  OF  LEA SES.  ($  1 7 

of  tlie  second  joart,  his  executors,  administrators,  and  assigns,  shall  and  may 
at  all  times  during  the  said  term  hereby  granted,  peaceably  and  quietly  have, 
hold,  and  enjoy  the  said  demised  premises,  without  any  manner  of  let,  suit, 
trouble,  or  hindrance  of  or  from  the  said  party  of  the  first  part,  his  heirs  or 
assigns,  or  any  other  person  or  persons  whomsoever. 

In  Witness  "Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals,  interchangeably,  to  two  copies  of  this  indenture. 

{Signat7ire  of  lessor)     {Seal.) 
{Signatitre  of  lessee.)     {Seal.) 
Iti  Presence  of 

(217.) 

A  Lease,  with  Covenants  about  "Water-Rate,  and  Injury  by 
Fire,  in  use  in  New  York. 

This  Agreement,  Made  between  {nauie  and  residence  of  lessor)  party 
of  the  first  part,  and  {name  and  residence  of  lessee)  party  of  the  second  part, 
witnesseth,  that  the  said  party  of  the  first  part  has  agreed  to  let,  and  hereby 
does  let,  and  the  said  party  of  the  second  part  has  agreed  to  take,  and 
hereby  does  take,  the  following-described  premises  {here  describe  ihe  preni- 
ises,  as  in  Form  211)  for  tl;e  term  of  to  commence 

and  to  end  to  be  occupied  {describe 

tJie  iiitended  occupation)  and  not  otherwise.  And  the  said  party  of  the  sec- 
ond part  hereby  covenants  and  agrees  to  pay  unto  the  said  party  of  the  first 
part  the  annual  rent  or  sum  of  dollars,  ^Dayable  {state  the 

times  and  terms  of  tJie  payments). 

And  shall  also  pay  the  Croton  water-rate,  and  will  keejD  the  plumbing 
work,  pipes,  glass,  and  the  premises  generally  in  repair,  and  will  surrender 
them  at  the  expiration  of  the  said  term,  in  as  good  state  and  condition  as 
reasonable  use  and  wear  thereof  will  permit. 

And  the  said  party  of  the  second  part  further  covenants  that  he  will  not 
assign,  let,  or  underlet  the  whole  or  any  part  of  the  said  premises,  nor  make 
any  alteration  therein  without  the  written  consent  of  tlie  said  party  of  the  first 
part,  under  the  penalty  of  foifeiture  and  damages  ;  and  that  he  will  not  occupy 
the  said  premises,  nor  permit  the  same  to  be  occupied  for  any  business 
deemed  extra-hazardous  without  the  like  consent,  u;ider  the  like  penalty. 
And  the  said  party  of  the  second  part  further  covenants  that  he  will  permit 
the  said  party  of  the  first  part,  or  his  agent,  to  show  the  premises  to  per- 
sons wishing  to  hire  or  purchase,  and  three  months  next  preceding  the 
expiration  of  the  term  will  permit  the  usual  notices  of  "  to  let,"  or  ''  for  sale," 
to  be  placed  upon  the  windows,  walls,  or  doors  of  said  premises,  and  remain 
thereon  without  hindrance  or  molestation. 

And  also,  that  if  default  be  made  in  any  of  the  covenants  herein  contained 
on  the  part  of  the  party  of  the  second  part,  or  if  the  said  premises  or  any 
part  thereof  shall  become  vacant  during  the  said  term,  the  said  party  of  the 
first  part  may  re-enter  the  same,  either  by  force  or  otherwise,  without  being 
iiable  to  any  prosecution  therefor  ;  and  re-let  the  said  premises  or  any  part 


6i8  LEASES. 

thereof  in  one  or  more  parcels,  as  the  agent  of  the  said  party  of  the  second 
part,  and  receive  the  rent  thereof,  applying  the  same,  first  to  the  payment  of 
such  expense  as  he  may  be  put  to  in  re-entering,  and  then  to  the  payment 
of  the  rent  due  by  these  presents  ;  and  the  balance  (if  any)  to  be  paid  over 
to  the  said  party  of  the  second  part ;  and,  in  case  of  deficiency,  said  party 
of  the  second  part  will  pay  the  same. 

And  the  said  party  of  the  second  part  hereby  further  covenants  that  if 
any  default  be  made  in  the  payment  of  the  said  rent,  or  any  part  thereof,  at  the 
times  above  specified,  or  if  default  be  made  in  the  performance  of  any  of  the 
covenants  or  agreements  herein  contained,  ihe  siid  hiring,  and  the  rehtion 
of  landlord  and  tenant,  at  the  option  of  the  said  party  of  tlie  first  part,  shall 
wholly  cease  and  determine  ;  and  the  said  party  of  the  first  part  shall  and 
may  re-enter  the  said  premises,  and  reinove  all  persons  tlierefrom  ;  and  the 
said  party  cf  the  second  part  hereby  expressly  waive  the  service  of  any 
notice  in  writing  of  intention  to  re-enter,  as  provided  for  in  the  third  section 
of  an  act  entitled  "An  Act  to  abolish  Distress  fcr  Rent,  and  for  other  Pur- 
poses," passed  May  13,  1846. 

And  it  is  further  agreed  between  the  parties  to  these  presents,  that,  in 
case  the  building  hereby  leased  shall  be  partially  dama'red  by  fire,  the  same 
shall  be  repaired  as  speedily  as  possible  by  tlie  party  of  the  fir.U  part  ;  that, 
in  case  the  damage  shall  be  so  extensive  as  to  render  the  bu'k'dng  untenant- 
able, the  rent  shall  cease  until  the  same  be  repaired;  provided  the  damage 
be  not  caused  by  the  carelessness  or  negligence  of  the  party  of  the  second 
part,  or  his  agents  or  servants. 

If  the  building  be  so  damaged  that  the  owner  shall  decide  to  rebuild,  the 
term  shall  cease,  the  premises  be  surrendered,  and  the  accrued  rent  be  paid 
up  to  the  time  of  the  fire. 

In  consideration  of  the  letting  of  the  premises  above  mentioned  to  the 
above  named  bia;/te  of  the  /essre)  and  of  the  sum  of  one  dollar  to  him  paid 
by  the  said  party  of  the  first  part,  the  said  party  of  the  second  part  does 
hereby  covenant  and  agree  to  and  with  the  party  of  the  first  part  above  named, 
and  his  legal  representatives,  that  if  default  shall  at  any  time  be  made  by  the 
said  party  of  the  second  part,  in  the  payment  of  the  rent  and  performance  of 
the  covenants  above  contained  on  his  part  to  be  j  aid  and  performed,  that  he 
will  well  and  truly  pay  the  said  rent  or  any  arrears  thereof,  that  may  remain 
due  unto  the  said  party  of  the  first  part,  and  also  all  damages  that  may  arise 
in  consequence  of  the  non-performance  of  said  covenants,  or  either  of  them, 
without  requiring  notice  of  any  such  default  from  the  said  party  of  the  fi.rst 
part. 

Witness  our  hands  and  seals  this  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

{^Witness.) 

{Signature  of  lessor.)     {Seal.) 
(.Signature  of  lessee.)    {Seal.) 


FORMS  OF  LEASES.  619 

(218.) 
A  Lease  by  Grant,  in  use  in  the  Western  States. 

This  Indenture,  Made  and  entered  into  on  the  day 

of  one  thousand  eight  hundred  and  by  and 

between  {navie  of  lessor)  of  {residence  of  lessor)  party  of  the  first  part,  and 
{natne  of  leasee)  of  {residence  of  lessee)  party  of  the  second  part,  witnesseth, 
that  the  said  party  of  the  first  part,  in  consideration  of  the  rents  reserved, 
and  the  covenants  hereinafter  contained,  does  hereby  grant,  demise,  and  to 
farm  let,  unto  the  said  party  of  the  second  part  {describe  the  premises  as  in 
Form  211). 

To  Have  and  to  Hold  the  Same,  Witli  all  the  rights,  immunities,  privi- 
leges and  appurtenances  thereto  belonging,  unto  the  said  party  of  the  second 
part,  and  his  executors,  administrators,  and  assigns,  for  and  during  the  full 
end  and  term  of  commencing  on  the  day  of 

18       ,  and  ending  on  the  day  of 

18         ,  under  and  subject  to  the  stipulations  hereinafter 
contained,  the  said  party  of  the  second  part  yielding  and  paying  to  the  said 
party  of  the  first  part,  for  the  said  premises,  the  annual  rent  of 
payable  in  equal  quarterly  {or  mottt/ily)  payments  ;  that  is  to  say 
on  the  during  said  term  ;  which   rent  the  said  party  of  the 

second  part,  for  himself  and  his  executors,  administrators,  and  assigns,  cov- 
enants well  and  truly  to  pay,  at  the  times  aforesaid. 

And  the  saiJ  party  of  the  second  part  covenants  and  agrees  that  if  the 
rent  aforesaid  should  at  any  time  remain  due  and  unpaid,  t'.ie  same  shall  bear 
interest  at  the  rate  of  per  cent,  per  annum,  from  the  time  it  so 

becomes  due,  until  paid.  And  the  said  party  of  the  second  part  further  cov- 
enants and  agrees  that  it  shall  be  lawful  for  the  said  party  of  the  first  part, 
and  those  having  freehold  estate  in  the  premises,  at  reasonable  times  to 
enter  into  and  upon  the  same,  to  examine  the  condition  thereof  ;  and  also 
that  the  said  pt^rty  of  the  second  part,  and  his  legal  representatives,  shall  and 
will,  at  the  expiration  of  this  lease,  whether  by  limitation  or  forfeiture,  peace- 
ably yield  up  to  the  said  party  of  the  first  part,  or  his  legal  representatives, 
the  said  premises,  in  the  condition  received,  only  excepting  natural  wear  and 
decay,  and  the  effects  of  fire  ;  and  tliat  the  said  party  of  the  second  part,  for 
and  during  all  the  time  that  he,  or  any  one  else  in  his  name,  shall  hold  over  the 
premises  after  the  expiration  of  this  lease,  in  either  of  said  ways,  shall  and 
will  pay  to  said  party  of  the  first  part  double  the  rent  hereinbefore  reserved. 
Also  the  said  party  of  the  second  part  further  covenants  and  agrees  that  any 
failure  to  pay  the  rent  hereinbefore  reserved,  when  due,  and  within 
days  after  a  demand  for  the  same,  shall  produce  an  absolute  forfeiture  of  this 
lease,  if  so  determined  by  said  party  of  the  first  part,  or  his  legal  represen- 
tatives. Also  that  this  lease  shall  not  be  assigned,  nor  the  said  premises,  or 
any  part  thereof,  underlet,  without  the  written  consent  of  the  said  party  of 
the  first  part,  or  his  legal  representatives,  under  penalty  of  forfeiture.  And 
that  all  repairs  of  a  temporary  character,  deemed  necessary  by  said  party  of 


620  LEASES. 

the  second  part,  shall  be  made  at  his  own  expense,  with  the  consent  of  the 
said  party  of  the  first  part,  or  his  legal  representatives,  and  not  otherwise. 

Provided  Always,  and  these  presents  are  on  this  express  condition, 
that  if  the  said  party  of  the  second  part,  or  his  legal  representatives,  shall  fail 
to  pay  the  rent  hereinbefore  reserved,  for  the  space  of  days  after  the 

same  shall  have  become  due,  or  shall  Idl  to  perform  any  of  the  covenants 
hereinbefore  entered  into  on  his  and  their  part,  then  the  said  party  of  the  first 
part  shall  be  at  liberty  to  declare  this  lease  forleited,  by  serving  a  written 
notice  to  that  effect  on  the  said  party  of  the  second  part,  or  his  legal  repre^ 
sentatives,  and  to  re-enter  upon  and  take  possession  of  the  demised  premi- 
ses, free  from  any  claim  of  the  lessee  or  any  one  claiming  under  him.  And 
all  estate  herein  granted  shall,  upon  service  of  such  notice,  forthwith  cease, 
and  said  lessor,  his  heirs,  legal  representatives,  or  assigns,  shall  be  forthwith 
entitled  to  the  possession  of  the  demised  premises  without  any  further  pro- 
ceeding at  law  or  otherwise,  to  recover  possession  thereof.  And  the  said 
party  of  the  first  part  covenants  and  agrees  with  the  said  party  of  the  second 
part,  and  his  legal  representatives,  that,  the  covenants  herein  contained  being 
faithfully  performed  by  the  said  party  of  the  second  part,  he  shall  peaceably 
hold  and  enjoy  the  said  demised  premises,  during  the  term  aforesaid,  with- 
out hindrance  or  interruption  by  the  said  lessor  or  any  other  person. 

In  Witness  Whereof,  The  said  parties  have  executed  this  indenture  in 
iuplicate,  signing  their  names  and  affixing  their  seals  to  both  parts  thereof, . 
the  day  and  year  in  this  behalf  above  written. 

{Signature  of  lessor)    {Seal) 
{Signature  of  lessee)     {Seal) 

In  Presence  of 

(219.) 

A  Lease  by  Certificate,  with  Surety. 

This  is  to  Certify,  That  I  have  let  and  rented  unto  {iiaute  of  lessee) 
[describe  the  premises,  as  in  Form  211)  for  the  term  of  from 

the  day  of  18         at  the  annual  rent  of 

dollars,  payable  {state  time  of paynnent).  The  premises 
above  mentioned,  or  any  part  thereof,  shall  not  be  let  or  underlet  without  the 
written  consent  of  the  landlord,  under  penalty  of  forfeiture  and  damages  ; 
nor  shall  the  same  be  used  or  occupied  for  any  business  deemed  hazardous  on 
account  of  fire,  without  the  like  consent  under  the  like  penalty. 

Given  under  my  hand  and  seal  the  day  of  18 

{Signature)        {Seal) 

{Witnesses) 

This  is  to  Certify,  That  I  have  hired  and  taken  from  {name  of  lessor) 
{describe  the  premises  in  the  same  way  as  in  the  preceding  part)  for  the  term 
of  from  the  day  of  18       at 

the  rent  of  dollars,  payable 

And  I  hereby  promise  to  make  punctual  payment  of  the  rent  in    manner 


FORMS  OF  LEASES.  621 

aforesaid,  and  to  quit  ar.d  surrender  the  premises,  at  tne  expiration  of  said 
term,  in  as  ^ood  ntate  and  condition  as  reasonable  use  and  wear  tliereof  will 
permit,  damages  by  the  elements  excepted,  and  engage  not  to  let  or  underlet 
the  whole  cr  any  part  of  the  said  "premises,  without  the  written  consent  of 
the  landlord,  under  the  penalty  of  forfeiture  and  damages  ;  and  also  not  to 
use  or  occupy  the  said  premises  for  any  business  deemed  extra  hazardous,  on 
account  of  fire,  without  the  like  consent,  under  the  like  penalty. 
Given  under  my  hand  and  seal  the  day  of  18 

{Signature.)         {Seal.) 
{ Witnesses) 

In  Consideration  of  the  letting  of  the  premises  above  described,  and 
for  the  sum  of  one  dollar,  I  do  hereby  become  surety  for  the  punctual  pay- 
ment of  the  rent,  and  performance  of  the  covenants,  in  the  above  written 
agreement  mentioned,  to  be  paid  and  performed  by  {name  of  lessee)  and  if 
any  default  shall  be  made  therein,  I  do  hereby  promise  and  agree  to  pay  unto 
{name  of  lessor)  such  sum  or  sums  of  money  as  will  be  sufficient  to  make 
up  such  deficiency,  and  fully  satisfy  the  conditions  of  the  said  agreement 
without  requiring  any  notice  of  non-payment,  or  proof  of  demand  being 
made. 

Given  under  my  hand  and  seal  the  day  of  18 


{Witnesses.) 

('220.) 


{Signature.)        {Seal.) 


A  Lease  of  City  Property,  in  use  in  St.  Louis. 
Tliis  Indenture,  Made  the  day  of  in  the  year  of 

jur  Lord  eighteen  hundred  and  between  {name  and  residence 

of  the  lessor)  of  the  first  part,  and  {name  and  residence  of  lessee)  of  the 
second  part,  witnesseth.  That  the  said  party  of  the  first  part,  in  considera- 
tion of  the  rents,  covenants,  and  stipulations  hereinafter  mentioned,  and 
hereby  agreed  to  be  paid,  kept,  and  performed  by  the  said  party  of  the 
second  part,  his  executors,  administrators,  and  assigns,  hath  leased,  and  by 
these  presents  doth  lease,  to  the  said  party  of  the  second  part  the  following- 
described  premises  {here  describe  the  house,  as  of  brick,  or  stone,  nutnber  of 
stories,  and  number  in  the  block)  in  block  No.  in  the  city  of  St.  Louis, 

to  commence  on  the  day  of  18         for  and 

during  the  term  of  at  the  annual  rent  of  payable  in  four 

equal  quarterly  payments,  beginning  three  months  from  the  date  hereof. 
Any  failure  to  pay  each  payment  of  rent  when  due,  to  produce  a  forfeiture 
of  this  lease,  if  so  determined  by  said  lessor  or  his  successors.  The  lease 
of  said  tenement  or  any  part  of  it  is  not  assignable,  nor  is  said  tenement  or 
any  part  of  it  to  be  underlet,  without  the  written  consent  of  said  lessor,  under 
penalty  of  forfeiture.  And  it  is  hereby  covenanted,  that,  at  the  e.xpiration 
of  this  lease,  the  said  tenement  and  premises  are  to  be  surrendered  to  said 
lessor,  his  heirs,  assigns,  or  successors,  in  the  condition  received,  only 
excepting  its  natural  wear  and  decay,  or  the  effects  of  accidental  fire.     All 


622  LEASES. 

repairs  deemed  necessary  by  said  lessee  to  be  made  at  his  expense.  AW 
tixtures  shall  be  bound  for  the  rent. 

The  said  lessee  and  all  holding  under  him  herel)y  engaging  to  pay  the 
rent  above  reserved,  and  double  rent  for  every  day  when  he  or  any  one  else 
in  his  name  shall  hold  on  to  the  whole  or  any  part  of  said  tenement,  after 
the  expiration  of  this  lease,  or  cf  its  forfeiture  for  non-payment  of  rent,  etc. 
This  tenement  and  premises  to  be  kept  free  of  any  nuisance  in  or  adjacent 
thereto,  at  the  expense  of  the  said  lessee. 

(Sig7iat7ire  of  lessor.)         {Seal.) 
{Signature  of  lessee.)         {_Seal.) 
( Witness.) 

(221.) 

"What  is  called  a  Country  Lease,  in  use  in  the  "Western 

States. 

This  Indenture,  Made  this  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  between  {name  of  lessor) 

of  the  of  in  the  County  of  and  State  of 

party  of  the  first  part,  and  (name  and  residence  of  lessee)  party  of  the  second 
part,  witnesseth,  That  the  said  party  of  the  first  part  for  and  in  consideration 
of  the  covenants  and  agreements  hereinafter  mentioned,  to  be  kept  and  per- 
formed by  the  said  party  of  the  second  part,  his  executors,  administrators, 
and  assigns,  has  demised  and  leased  to  the  said  party  of  the  second  part  all 
those  premises  situate,  lying  and  being  in  the  township  of  County 

of  State  of  known  and  described  as  follows,  to  wit 

{describe  the  premises  in  such  way  as  to  identify  them  perfectly  by  situation^ 
metes.,  and  bottnds,  or  otherwise). 

To  Have  and  to  Hold  the  said  above-described  premises,  with  the  appur* 
tenances,  unto  the  said  party  of  the  second  part,  and  his  executors, 
administrators,  and  assigns,  from  the  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  for  and  during,  and 

until  the  day  of  in  the  vear  of  our  Lord  one  thousand 

eight  hundred  and  Paying  rent  therefor  as  hereinafter  stated. 

And  the  said  party  of  the  second  part,  in  consideration  of  the  leasing  of 
the  premises  aforesaid,  by  the  said  party  of  the  first  part,  to  the  said  party 
of  the  second  part,  does  covenant  and  agree  with  the  said  party  of  the  first 
part,  and  his  heirs,  executors,  administrators,  and  assigns,  to  pay  the  said 
party  of  the  first  part,  as  rent  for  the  said  demised  premises,  the  sum  of 
dollars,  annuil  rent,  payable  quarterly,  in  four  equal  quarterly 
payments,  the  first  payment  to  be  due  and  made  in  three  months  from  the 
date  of  this  lease,  payable  at  the  {here  state  the  place  where  the  rent  should 
be  paid). 

And  the  said  party  of  the  second  part  further  covenants  with  the  said 
party  of  the  first  part,  that  at  the  expiration  of  the  time  in  this  lease 
mentioned,  he  will  yield  'n  the  said  demised  premises  to  the  said  party  of 
the  first  part,  in  as  good  condition  as  when  the  same  were  entered  upon  by 


FORMS  OF  LEASES. 


623 


the  said  party  of  the  second  part,  loss  by  fire  or  inevitable  accident,  and 
ordinary  wear  excepted. 

It  is  further  agreed  by  the  said  party  of  ihe  second  part,  that  neither  he 
nor  hi.s  legal  representative  will  underlet  said  premises,  or  any  part  thereof, 
or  assign  this  lease,  without  the  written  assent  of  said  party  of  the  first  part, 
first  had  and  obtained  thereto. 

It  is  Expressly  Understood  and  Agreed  by  and  between  the  parties 
aforesaid,  that  if  the  rent  above  reserved,  or  any  part  thereof,  shall  be  behind 
or  unjjaiJ,  on  the  day  and  at  the  place  of  payment,  whereon  the  same  ouglit 
to  be  paid,  as  aforesaid,  or  if  default  shall  be  made  in  any  of  the  covenants 
herein  contained,  to  be  kept  by  the  said  party  of  the  second  part,  his 
executors,  administrators,  and  assigns,  it  shall  and  may  be  lawful  for  the 
said  party  of  the  first  part,  his  heirs,  executors,  administrators,  agent, 
attorney,  or  assigns,  at  his  or  their  election,  to  declare  said  term  ended,  and 
the  said  demised  premises,  or  any  part  thereof  either  with  or  without  process 
of  law,  to  re-enter,  and  the  said  party  of  the  second  part,  or  any  other  per- 
son or  persons  occupying,  in  or  upon  the  same,  to  expel,  remove,  and  put 
out,  using  such  force  as  may  be  necessary  in  so  doing,  and  the  said  premises 
again  to  repossess  and  enjoy,  as  in  his  or  their  first  and  former  estate;  and  it 
sliall  be  the  duty  of  the  said  party  of  the  second  part,  his  executors,  admin- 
istrators, or  assigns,  to  be  and  appear  at  the  said  place  above  specified,  for 
tlie  payment  of  said  rent,  and  then  and  there  tender  and  pay  the  same  as  the 
same  shall  fall  due  from  time  to  time,  as  above,  to  the  said  party  of  the  first 
part,  or  his  agent  or  assigns;  or  in  his  or  their  absence,  if  the  said  party  of 
the  second  part  shall  offer  to  pay  the  same  then  and  there,  such  offer  shall 
prevent  said  forfeiture. 

And  it  is  expressly  understood  that  it  shall  not  be  necessary  in  any  even; 
for  the  party  of  the  first  part  or  his  assigns,  to  go  on  or  near  the  said 
demised  premises  to  demand  said  rent,  or  elsewhere  than  at  the  place  afon>- 
said.  And  in  the  event  of  any  rent  being  due  and  unpaid,  whether  befor™ 
or  after  such  forfeiture  declared,  to  distrain  for  any  rent  that  may  be  duq 
thereon,  upon  any  property  belonging  to  the  said  party  of  the  second  par:, 
whether  the  same  be  exempt  from  execution  or  distress  by  law  or  not,  and 
the  said  party  of  the  second  part,  in  that  case,  hereby  waives  all  legal  rights 
which  he  now  has  or  may  have  to  hold  or  retain  any  such  property,  under 
any  exemption  laws  now  in  force  in  this  State,  or  in  any  other  way.  Mean- 
ing and  intending  hereby  to  give  to  the  said  party  of  the  first  part  and  his 
heirs,  executors,  administrators,  and  assigns,  a  valid  and  first  lien  upon  any 
and  all  the  goods,  chattels,  or  other  property  belonging  to  the  said  party  of 
the  second  part,  as  security  for  the  payment  of  said  rent  in  manner  afore- 
said, anything  hereinbefore  contained  to  the  contrary  notwithstanding.  And 
if  at  any  time  said  term  shall  be  ended  at  such  election  of  said  party  of  the 
I'.rst  part,  or  his  heirs,  executors,  administrators,  or  assigns,  as  aforesaid,  or 
in  any  other  waj^  the  said  party  of  the  second  part,  for  himself  and  his 
executors,  administrators,  and  assigns,  does  hereby  covenant,  promise,  and 


624 


LEASES. 


agree  to  surrender  and  deliver  up  said  above-described  premises  and 
property,  peaceably,  to  said  party  of  the  first  part,  or  his  heirs,  executors, 
administrators,  and  assigns,  immediately  upon  the  determination  of  said 
term  as  aforesaid;  and  if  he  shall  remain  in  the  possession  of  the  same 
days  after  notice  of  such  default,  or  after  the  termination  of  this 
lease,  in  any  of  the  ways  above  named,  he  s!iall  be  deemed  guilty  of  a 
forcible  detainer  of  said  demised  premises,  and  shall  be  subject  to  all  the 
conditions  and  provisions  above  named,  and  to  eviction  and  removal,  forcibly 
or  otherwise,  with  or  without  process  of  law,  as  above  stated. 

And  it  is  further  covenanted  and  agreed  by  and  between  the  parties,  tha 
the  party  of  tl,e  second  part  shall  pay  and  discharge  all  costs  and  attorney's 
fees  and  expenses  that  shall  arise  from  enforcing  the  covenants  of  this 
indenture  by  the  party  of  the  first  part. 

In  Testimony  "Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

{Signature  of  lessor^         {Seal.) 
{Signature  of  lessee.)         {Seal.) 
In  Presence  of 

(222.) 
A  Ground  Lease. 

This  Indenture,  Made  this  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  between  {na7ne  and 

residence  of  lessor)  party  of  the  first  part,  and  {name  and  residence  of  lessee) 
party  of  the  second  part,  witaesseth,  That  the  said  party  of  the  first  part  for 
and  in  consideration  of  the  covenants  and  agreements  hereinafter  mentioned, 
to  be  kept  and  performed  by  the  party  of  the  second  part,  hath  demised  and 
leased  to  the  party  of  the  second  part,  all  those  premises  situate  in  the 

of  in  the  County  of  and  State  of 

known  and  described  as  follows,  to  \vit  {here  give  such 
description  of  the  premises  as  shall  identify  them,  a7id distingiiish  them  from 
any  other). 

To  Eave  and  to  Hold  The  above  described  premises,  with  the  appur- 
tenances, unto  the  party  of  the  second  part,  from  the  day 
of  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
for  and  during,  and  until  the  .  And  the  party  of  the  second 
part,  in  consideration  of  the  leasing  of  the  premises  aforesaid,  does  covenant 
and  agree  with  the  party  of  the  first  part  to  pay  to  the  party  of  the  first  part 
as  rent  for  said  demised  premises,  at  the  office  of  in 
the  sum  of  {state  the  sum  to  be  paid  as  annual  rent)  in  four  equal  quarterly 
payments,  each  of  them  the  sum  of  dollars,  to  be  paid  on  the 
first  {or  other)  day  of  the  month  of  {the  four  months  in  which  the  rent  is 
payable)  in  each  year  [or  describe  otherwise  the  terms  and  times  of  the  pay- 
vients  as  they  may  have  been  agreed  ttpon):  and  also  that  the  said  party  of 
the  second  part  will  pay,  or  cause  to  be  paid,  all  water-rates,  and  all  taxes, 


FO/^AfS  OF  LEASES. 


625 


and  assessments  that  may  be  laid,  charged  or  assessed  on  said  demised 
premises  pending  the  existence  of  this  lease  ;  or  if  at  any  time  after  any  tax, 
assessment,  or  water-rate  shall  have  become  due  or  i^ay able,  the  party  of  tl:a 
second  part,  or  his  legal  representatives,  shall  neglect  to  pay  such  water- 
rates,  tax,  or  assessment,  it  may  be  lawful  for  the  party  of  the  first  part  to 
pay  the  same  at  any  time  thereafter,  and  the  amount  of  any  and  all  such 
payments  so  made  by  the  party  of  the  first  part  shall  be  deemed  and  taken, 
and  are  hereby  declared  to  be,  so  much  additional  and  further  rent,  frr 
the  above  demised  premises,  due  from  and  payable  by  the  party  of  tha 
second  part ;  and  may  be  collected  in  the  same  manner,  by  distress  or 
otherwise,  as  is  hereinafter  provided  for  tlie  collection  of  other  rents  to  grow 
due  thereon. 

An;l  it  is  expressly  understood  and  agreed  by  the  said  party  of  the  second 
part  hereto,  for  himself  and  his  heirs,  executors,  administrators,  and  assigns, 
that  the  wliole  amount  cf  rent  reserved,  and  agreed  to  be  paid  for  said  above 
demised  premises,  and  each  and  every  installment  thereof,  shal'  be  and  is 
hereby  declared  to  be  a  valid  and  first  lien  upon  any  and  all  buildings  and 
improvements  on  sail  premises,  or  that  may  at  any  time  be  erected,  placed, 
or  put  on  said  premises  by  said  party  cf  the  second  part,  or  his  heirs,  exec« 
utors,  and  administrators,  or  assigns,  and  upon  his  or  their  interest  in  this 
lease,  and  the  premises  hereby  demised  ;  and  that  whenever,  and  as  often  as 
any  installment  of  rent  or  any  other  amount  above  declared  to  be  deemed 
and  taken  as  rent,  shall  become  due  and  remain  unpaid  f  ^r  one  day  after  the 
same  becomes  due  and  payable,  said  party  of  the  first  part,  his  heirs,  exec- 
utors, administrators,  agent,  attorney,  or  assigns,  may  sell  at  public  auction 
to  the  highest  bid.ler  for  cash,  after  having  first  g'ven  ten  days'  notice  of  the 
time  and  place  of  such  sale  in  some  newspaper  published  in 
all  the  buildings  and  improvements  on  said  premises,  and  all  the  right,  title, 
and  interest  acquired  by  said  party  of  the  second  part,  under  this  lease,  to 
the  premises  herein  described,  and  as  the  attorney  of  the  said  party  of  the 
second  part — hereby  irrevocably  constituted — may  make  to  the  purchaser  or 
purchasers  thereof,  a  suitable  and  proper  transfer  bill  of  sale  or  deed  of  the 
same — and  out  of  the  proceeds  arising  from  such  sale,  after  first  paying  all 
costs  and  expenses  of  such  sale,  including  commissions  and  attorney's  fees 
—retain  to  himself  the  whole  amount  due  on  said  lease  up  to  the  date  of  said 
sale,  rendering  the  surplus  (if  any)  to  said  party  of  the  second  part,  his  heirs, 
executors,  administrators,  agent,  attorney,  or  assigns,  which  sale  shall  be  a 
perpetual  bar  to  and  against  all  rights  and  equities  of  said  party  of  the  second 
part,  his  heirs  and  assigns  in  and  to  the  property  sold. 

And  the  party  of  the  second  part  further  covenants  with  the  party  of 
the  first  part,  tliat,  at  the  expiration  of  the  time  in  this  lease  mentioned, 
he  will  yield  up  said  demised  premises  to  the  party  of  the  first  part,  in 
as  good  condition  as  when  tlie  same  were  entered  upon  by  the  party  of 
the  second  part,  loss  by  fire,  or  inevitable  accident  and  ordinary  wear 
excepted. 


626  LEASES. 

It  is  further  agreed  by  the  jjarty  of  the  second  part,  that  neither  he  nor 
his  legal  representatives  will  underlet  said  premises,  or  any  part  thereof,  or 
assign  this  lease,  without  the  written  assent  cf  said  party  of  the  first  part 
first  had  and  obtained  thereunto,  nor  use  or  suffer  them  to  be  used  for  any 
purpose  calculated  to  injure  the  reputation  of  the  premises,  or  of  the  neigh- 
borhood, or  to  impair  the  value  of  the  surrounding  neighborhood  property 
for  present  use  or  otherwise. 

It  is  Expressly  TJndorstood  and  A;]:reed,  By  and  between  the  par- 
ties aforesaid,  that  if  the  rent  above  reserved,  or  an}'  part  thereof,  shall  be 
behind  or  unpaid  on  the  day  of  payment  whereon  the  same  ought  to  be  paid, 
as  aforesaid,  or  if  default  shall  be  made  in  any  of  the  covenants  herein  con- 
tained to  be  kei)t  by  the  party  of  the  second  part,  executors,  administrators, 
or  assigns,  it  shall  and  may  be  lawful  for  tl^e  party  of  the  first  part,  or  his 
heir.-,  executors,  administrators,  agent,  attorr-ey,  or  assigns,  at  his  or  their 
election,  to  declare  said  term  ended,  and  into  the  said  demised  premises,  or 
any  jaart  thereof,  either  with  or  without  process  of  law,  to  re-enter,  and  the 
parly  of  the  second  part  or  any  other  person  or  persons  'occupying,  in  or 
upon  the  same,  to  expel,  remove,  and  put  out,  using  such  force  as  may 
be  necessary  in  so  doing,  and  the  said  premises  again  to  repossess 
und  enjoy,  as  of  his  or  their  first  and  former  estate  ;  and  to  distrain 
lor  any  rent  that  may  be  due  thereon,  upon  any  property  belonging  to 
the  party  of  the  second  part,  whether  the  same  be  exempt  from  execu- 
tion and  distress  by  law  or  not  ;  and  the  partv  of  the  second  part,  in 
that  case,  hereby  waives  all  legal  rights  which  he  now  has  or  may 
have,  to  hold  or  retain  any  such  property  under  any  exemption  laws  now 
in  force  in  this  State,  or  in  any  other  way;  meaning  and  intending 
hereby  to  give  the  party  of  the  first  part,  his  heirs,  executors,  administrators, 
agent,  attorney,  or  assigns,  a  valid  and  first  lien  upon  any  and  all  the  goods, 
chattels,  or  other  property  belonging  to  the  party  of  the  second  part,  as  st?- 
curity  for  the  payment  of  said  rent,  in  manner  aforesaid,  anything  hereinbe- 
fore contained  to  the  contrary  notwithstanding.  And  if  at  any  time  saii< 
term  shall  be  ended  at  such  election  of  said  party  of  the  first  part,  or  hi  ^ 
heirs,  executors,  administrators,  agent,  attorney,  or  assigns,  as  aforesaid,  or 
in  any  other  wa}',  the  party  of  the  second  part  does  hereby  covenant  and 
agree  to  surrender  and  deliver  up  said  above  described  premises  and  prop- 
erty peaceably  to  the  party  of  the  first  part,  or  his  heirs,  executors,  admin- 
istrators, agent,  attorney,  or  assigns,  immediately  upon  the  determination  of 
said  term  as  aforesaid  ;  and  if  the  said  party  of  the  second  part,  or  his  legal 
representatives,  shall  remain  in  possession  of  the  same  one  day  after  notice 
of  such  default,  or  after  the  termination  of  this  lease,  in  any  of  the  ways 
above  named,  he  or  they  shall  be  deemed  guilty  of  a  forcible  detainer  of  the 
premises,  and  shall  be  subject  to  all  the  conditions  and  provisions  above 
named,  and  to  eviction  and  removal,  forcibly  or  otherwise,  with  or  without 
process  of  law,  as  above  stated. 

And  it  is    further    understood   and    agreed    by  the    said   party   of   the 


FORMS  OF  LEASES. 


627 


second  part,  that  neither  the  right  given  in  this  lease,  to  said  party  of 
the  first  part,  to  collect  the  rent  that  may  be  due  under  the  terms  of  this 
lease  by  sale,  or  any  proceedings  under  the  same,  sha'.l  in  any  way  affect  the 
right  of  said  party  of  the  first  part  to  declare  t'.iis  leaf  e  void,  and  tlie  term 
liereby  created  ended,  as  above  provided  upon  default  made  by  said  party 
of  the  second  part. 

And  the  said  party  cf  the  first  part  hereby  waives  his  right  to  any  notice 
from  said  party  of  the  second  part,  of  his  election  to  declare  this  lease  at  an 
end,  under  any  cf  its  provisions,  or  any  dcmaiid  for  the  payment  of  rent, 
or  the  possession  of  premises  leased  herein  ;  but  the  simple  fact  of  the  non- 
payment of  the  rent  reserved  shall  constitute  a  forcible  entry  and  detainer  as 
aforesaid. 

And  said  party  of  the  second  pr.rt  further  agrees  not  to  remove  any 
buildings  or  other  improvements  from  said  premises,  without  written  con- 
sent of  said  party  of  the  first  part,  and  that  the  said  second  party  shall 
pay  and  discharge  all  costs  and  attorney's  fees  and  expenses  that  shall 
arise  from  enforcing  the  covenants  cf  this  indenture,  by  the  party  of  the  first 
part. 

//  is  fiirtJicr  jiiiderstood  and  agreed.  That  all  the  conditions  and  cov 
enants  contained  in  this  lea'^e  shall  be  binding  upon  the  heirs,  executors, 
administrators,  and  assigns  of  the  parties  to  these  presents  respectively. 

In  Testimony  Whereof,  The  said  parties  have  hereunto  set  their  hand? 
and  seals,  the  day  and  year  first  above  written. 

{Signature  of  the  lessor)     {Seal.) 
{Signature  of  the  lessee.)     {Seal.) 

Signed,  Sealed,  and  Delivered  in  Presence  of 

(223.) 
An  Assignment  of  Lease,  and  G-ronnd-Rent. 

This  Indenture,  made  the  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  between  {name  and 

residence  of  the  assig?ior)  party  of  the  first  part,  and  {name  and  residence  of 
the  assignee)  partv  of  the  second  part,  v>-it;iesseth.  That  the  said  party  of  the 
first  part,  for  and  in  consideration  of  the  sum  of  dollars,  lawful 

money  of  the  United  States  of  America,  unto  him  in  hand  well  and  truly 
paid  by  the  said  party  of  the  second  part,  at  the  tin;e  of  the  execution 
hereof,  the  receipt  whereof  is  hereby  acknowledged,  by  these  presents  does; 
grant,  bargain,  sell,  assign,  release,  and  confirm  unto  the  said  party  of  tl « 
second  part  a  certain  indenture,  made  and  executed  on  the  day  cl 

in  the  year  of  our  Lori  eighteen  hundred  and  whereby 

the  said  party  of  the  first  part  leased  to  one  {name  of  the  lessee  in  the  lease 
here  assigned)  certain  premises  therein  described  as  follows  {here  copy  the 
description  of  the  premises  in  that  lease)  reserving  a  certain  rent,  payable  to 
said  party  of  tlie  first  part ;  that  is  to  say  {here  state  the  rent  reserved  in  that 


628  LEASES. 

lease)  payable  (Jierc  state  the  times  and  terms  of  payment)  together  with  the 
said  rent  to  the  said  party  of  the  first  part,  payable  as  aforesaid. 

Together  with  all  right  and  power  of  entry  and  distress  and  of  re  entry, 
and  all  other  the  covenants,  ways,  means,  and  remedies  for  the  recovery 
thereof,  and  all  and  singular  the  rights,  incidents,  and  appurtenances  whatso- 
ever, thereunto  belonging,  and  the  reversions  and  remainders  thereof,  and 
all  the  estate,  right,  title,  interest,  property,  claim,  and  demand  whatso- 
ever, of  him  the  said  party  of  the  first  part,  or  his  legal  representatives, 
either  in  law  or  equity,  as  well  of,  in,  and  to  the  said  yearly  rent  cr  sum 
hereby  granted  and  assigned,  as  al.o  of,  in,  and  to  the  said  lot  or  piece  ci 
ground,  with  the  appurtenances,  for  and  out  of  which  the  same  rent  is 
issuing  and  payable.  To  have  and  to  hold,  receive  and  take,  all  and  singular 
the  hereditaments  and  premises  hereby  granted  and  assigned,  with  the 
rights,  remedies,  incidents,  and  appurtenances,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  to  and  for  the  only  proper  use  and  behoof 
of  him  the  said  party  of  the  second  part,  his  heirs  and  assigns  forever- 
And  the  said  party  of  the  first  part,  and  his  heirs,  all  and  singular  the  heredi« 
laments  and  premises  hereby  granted  and  assigned,  with  the  rights,  remedies, 
incidents,  and  appurtenances,  unto  the  said  party  of  the  second  part,  and 
his  heirs  and  assigns,  against  him  the  said  party  of  the  first  part  and  his 
heirs,  and  against  all  and  every  other  person  and  persons  whomsoever, 
lawfully  claiming  or  to  claim,  by,  from,  or  under  him  or  them,  or  any  of  them, 
shall  and  will  warrant  and  forever  defend  by  these  presents. 

In  Witness  Whereof,  The  said  parties  to  these  presents  have  hereunto 
interchangeably  set  their  hands  and  seals  the  day  and  year  hereinbefore  first 
written. 

{Signature  of  the  assignor)     {Seal.) 
{Signature  of  the  assignee.)     {Seal.) 

Sealed  and  Delivered  in  the  Presence  of  us, 
(  Witnesses) 

Received  the  day  of  the  date  of  the  above  indenture  of  the  above- 
named  the  sum  of  being  the  full  consideration  money 
above  mentioned. 

{Signature  of  the  assignor'.) 
(  Witness.) 

On  the  day  of  Anno  Domini,  i8     ,  before  me, 

personally  appeared  the  above-named  {name  of  the  assignor) 
and  in  due  form  of  law  acknowledged  the  above  indenture  to  be  his  free  act 
and  deed,  and  desired  the  same  might  be  recorded  as  such. 
"Witness  my  hand  and  seal  the  day  and  year  aforesaid. 

{Signature)    {Seat) 


FORMS  OF  LEASES. 


629 


(224.) 

A  Lease  containing  Chattel  Mortgage  Covenants,  to 

secure  the  Rent. 

This  Indenture,  Made  this  day  of  in  the  year  o£ 

our  Lord  one  thousand  eight  hundred  and  between  {name  and 

residence  of  lessor)  of  the  first  part,  and  {name  and  residence  of  lessee)  of 
the  second  part,  witnesseth.  That  the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  covenants  and  agreements  hereinafter  mentioned,  to  be 
kept  and  performed  by  the  said  pirty  cf  the  second  part,  his  executors, 
administrators,  and  assigns,  has  demised  and  leased  to  the  said  party  of  the 
second  part  all  those  premises  situate,  lying,  and  being  in  the  city  of 
in  the  County  cf  and  in  the  State  of  known  and  described 

as  follows,  to  wit  {here  describe  the  premises  as  in  Fort/i  211). 

To  Kave  and  to  Hold  The  said  above-described  premises,  with  the 
appurtenances,  unto  the  said  party  of  the  second  part,  his  executors,  admin- 
i  strators,  and  assigns,  from  the  day  of  in  the  year  of 

('Ur  Lord  one  thousand  eight  hundred  and  for  and  during  and 

until  the  day  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  .     And  the  said  party  of  the  second  part, 

in  consideration  of  the  leasing  of  the  premises  aforesaid,  by  the  said  party 
of  the  first  part  to  the  said  party  of  the  second  part,  does  covenant  and 
agree  with  the  said  party  of  the  first  part,  his  heirs,  executors,  administra* 
tors,  and  assigns,  to  pay  the  said  party  of  the  first  part,  as  rent  for  said 
demised  premises,  the  sum  of  dollars,  in  four  equal  quarterly  pay- 

ments of  dollars  each  ($  ),  payable  {here  state  the  days  when 

the  rent  should  be  paid)  at  the  house  {or  office,  or  counting-room,  or  store)  of 
said  party  of  the  first  part,  in  said  q\\\  of 

And  it  is  further  agreed  by  the  said  party  cf  the  second  part,  in  con- 
sideration of  the  leasing  of  the  premises  aforesaid,  that  the  said  party  c>f 
die  second  part  shall  and  will  pay,  or  cause  to  be  paid  promptly,  as  soon  as 
the  same  becomes  due,  all  assessments  for  water-rents  that  may  be  levied 
upon  said  demised  premises  during  the  continuance  of  this  lease,  and  save 
said  premises  and  the  party  of  the  first  part  harmless  from  all  charges  and 
expenses  connected  with  the  supply  of  water  to  said  premises.  And  the 
said  party  of  the  second  part  hereby  covenants  and  agrees,  in  case  of 
default  in  the  payment  of  any  water-rent  levied  upon  said  premises  during 
said  term,  to  pay  unto  said  party  of  the  first  part,  as  liquidated  damages  for 
such  breach  of  covenant,  double  the  sum  of  such  rent  so  assessed  upon 
said  premises  as  aforesaid. 

And  the  said  party  of  the  second  part  further  covenants  with  the  said 
party  of  the  first  part,  that  he  will  keep  said  premises  in  a  clean  and  healthy 
condition,  in  accordance  with  the  ordinances  of  the  city,  and  directions  of 
the  proper  authorities. 

It  is  further  agreed  by  the  said  party  of  the  second  part,  that  neither  he 
nor  his  legal  representatives  will  underlet  said  premises  or  any  part  thereof^ 


630 


LEASES. 


or  assign  this  lease,  without  the  written  assent  of  the  said  party  of  the  first 
part  first  had  and  obtained  thereto. 

This  Indenture  Further  Witnesseth.  Tliatthe  said  part}' of  the  second 
part,  for  and  in  consideration  of  the  sum  of  {insert  the  ivJiole  stun  to  be  paid 
iinder  the  lease)  dollars,  in  hand  paid,  the  receipt  whereof  is  hereby  acknowl- 
edged, does  hereby  grant,  sell,  convey,  and  confirm  unto  the  said  party  of 
the  first  part,  his  heirs  and  assigns,  all  and  singular  the  following-described 
goods  and  chattels,  to  wit  {Jure  give  a  schedule  or  list  of  the  articles^  describ- 
ing tlicvi  sufficiently'). 

Together  with  all  and  singular  the  appurtenances  thereunto  belonging 
or  in  anywise  appertaining:  to  have  and  to  hold  the  same  unto  the  said 
party  of  the  first  part,  his  heirs,  executors,  administrators,  and  assigns,  to 
his  and  their  sole  use  forever.  And  the  said  party  of  the  second  part,  for 
himself  and  f;-r  his  heirs,  executors,  and  administrators,  does  covenant  and 
agree  with  the  said  party  of  the  first  part  and  his  heirs,  executors,  adminis- 
(rators,  and  assigns,  that  he  is  lawfully  possessed  of  the  said  goods  and 
I  battels  as  of  his  own  property;  that  the  same  are  free  from  all  incum- 
lirances,  and  that  he  will,  and  his  heirs,  executors,  and  administrators  shall, 
i^'arrant  and  defend  the  same  unto  the  said  party  of  the  first  part,  and  his 
lieirs,  executors,  administrators,  and  assigns,  against  the  lawiul  claims  and 
demands  of  all  persons. 

Provided,  Nevertheless,  That  if  the  said  party  of  the  second  part  or 
Ids  heirs,  executors,  administrators,  or  assigns,  shall  well  and  truly  pay,  or 
( ause  to  be  paid,  unto  the  said  party  of  the  first  part  or  his  heirs,  executors, 
administrators,  or  assigns,  the  said  sum  of  dollars,  rent,  above 

reserved,  punctually,  and  in  the  manner  and  at  the  times  and  place  above 
mentioned,  then  and  from  thenceforth  these  presents, and  everything  hereiik 
contained,  shall  cease,  and  be  null  and  void. 

And  Provided  Also,  That  it  shall  be  lawful  for  the  said  party  of  thi; 
•second  part,  his  heirs,  executors,  and  adminis'rators,  to  retain  possession  of 
the  said  granted  goods  and  chattels,  and  at  his  own  expense  to  keep  and  to 
use  and  enjoy  the  same,  until  the  said  party  of  the  second  part,  or  his  heirs, 
executors,  administrators,  or  assigns,  shall  make  default* in  the  payment  of 
said  rent  above  specified,  at  the  time  or  times,  and  in  the  manner  herein- 
before contained,  or  unless  the  said  party  of  the  first  part  shall  fear  diminu- 
tion, removal,  or  waste  for  want  of  proper  care,  or  if  the  said  party  of  the 
second  part  shall  sell  or  assign,  or  attempt  to  sell  or  assign  said  goods 
and  chattels,  or  any  part  thereof,  or  if  any  writ  issued  from  any  court  shall 
be  levied  on  any  part  of  the  above-described  floods  and  chattels — that  then, 
and  in  any  of  the  aforesaid  cases,  all  of  said  sum  of  dollars, 

above  reserved  as  rent  for  said  demised  premises,  shall  become  due  and 
payable,  and  the  said  party  of  the  first  part,  his  heirs,  executors,  adminis- 
trators, and  assigns,  agents  Oi  attorneys,  or  any  of  them,  may  elect  to  take 
possession  of  the  said  property,  and  for  that  purpose  may  pursue  the  same 
or  any  part  thereof,  wherever  it  may  be  found,  and  also  may  enter  any  of  the 


FORMS  OF  LEASES.  63  I 

premises  cf  the  said  party  of  the  second  part,  with  or  without  force  or 
process  oi  'aw,  wherever  the  said  goods  and  chattels  may  be  or  be  supposed 
to  b'2.  and  search  for  the  same,  and,  if  found,  to  take  possession  of  and 
remove,  and  sell  and  dispose  of  said  property,  or  so  much  thereof  as  may 
be  necessary  to  pay  the  rent  due,  and  t!ie  bahnce  of  rent  for  the  whole 
unexpired  term,  whether  due  or  not  due,  at  public  auction,  to  the  highest 
bidder,  after  giving  ten  days'  notice  of  the  time,  place,  and  terms  of  sale, 
togedier  with  a  description  of  the  property  to  be  sold,  either  by  publication 
in  some  newspaper  in  the  city  of  or  by  similar  notices  posted  up 

in  three  public  places  in  the  vicinity  of  such  sale,  or  at  private  sale,  with  cr 
without  notice  for  cash  or  on  credit,  as  the  said  party  of  the  first  part,  or 
his  heirs,  exer-utors,  administrators,  or  assigns,  agents  or  attorneys,  or  any 
of  them,  may  elect,  and  out  of  the  money  arising  from  such  sale,  to  retain, 
first,  all  costs  and  charges  for  jjursuing,  searching,  taking,  removing,  keep- 
ing, storing,  advertising,  and  selling  of  such  property,  goods,  chattels,  and 
fiSects,  and  all  prior  liens,  together  with  the  rent  due,  and  the  balance  cf 
ri;nt  for  the  whole  unexpired  term,  whether  due  or  not  due,  rendering  the 
f  v^erplus  of  the  money  arising  from  such  sale,  and  the  remainder  of  said 
goods  and  chattels,  if  any  there  shall  be,  unto  the  said  party  of  the  second 
part,  or  his  legal  representatives. 

It  is  Expressly  Understood  and  Agreed,  by  and  between  the  parties 
aforesaid,  that  if  the  rent  above  covenanted  to  be  paid,  or  any  part  thereof, 
shall  be  behind  or  unpaid  on  the  day  of  payment  whereon  the  same  ought  to 
be  paid,  as  aforesaid,  or  if  default  shall  be  made  in  any  of  the  covenants 
herein  contained,  to  be  kept  by  the  said  party  of  the  second  part,  his  execu- 
tors, administrators,  and  assigns,  it  shall  and  may  be  lawful  for  the  said  part^' 
of  the  first  part,  his  heirs,  executors,  administrators,  agent,  attorney,  or 
assigns,  at  his  or  their  election,  to  declare  said  term  ended,  and  into  the  said 
demised  premises,  or  any  part  thereof,  either  with  or  without  process  of  law, 
to  re-enter,  and  that  said  party  of  the  second  part,  or  any  other  p'erson  or 
persons  occupying,  in  or  upon  the  same,  to  expel,  remove,  and  put  out,  using 
such  force  as  may  be  necessary  in  so  doing,  and  the  said  premises  again  to 
repossess  and  enjoy,  as  in  his  or  their  first  and  former  estate,  and  to  dis- 
train for  any  rent  that  may  be  due  thereon,  upon  any  property  belonging  to 
the  said  party  of  the  second  part,  whether  the  same  be  exempt  from  exeru- 
tion  or  distress  by  law  or  not,  and  the  said  party  of  the  second  part,  in  that 
case,  hereby  agrees  to  waive  all  legal  right  which  he  may  have  to  hold  or 
retain  any  such  property,  under  any  exemption-law  now  in  force  in  this 
State,  or  in  any  other  way.  And  if  at  any  time  said  term  shall  be  ended  at 
such  election  of  said  party  of  the  first  part,  or  his  heirs,  executors,  adminis- 
trators, or  assigns,  as  aforesaid,  or  in  any  other  way,  the  said  party  of  the 
second  part,  or  his  executors,  administrators,  or  assigns,  does  hereby  cove- 
nant and  agree  to  surrender  and  deliver  up  said  above-described  premises 
and  property,  peaceably,  to  said  party  of  the  first  part,  or  his  heirs,  execu- 
tors, administrators,  and  assigns,  immediately  upon  the  determination  of  said 


632  LEASES. 

term  as  aforesaid,  and  if  lie  shall  remain  in  j^ossession  of  the  same  after  such 
default,  or  after  the  tormination  of  this  lease  in  any  of  the  ways  above  named, 
he  shall  be  deemed  guilty  of  a  forcible  detainer  of  said  demised  premises,  and 
shall  be  subject  to  all  the  conditions  and  provisions  above  named,  and  to 
eviction  and  removal,  forcibly  or  otherwise,  with  or  without  process  of  law, 
as  above  stated. 

In  Testimony  Whereof,  The  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

{Signature  of  lessor^    {Seal.) 
{Signature  of  lessee!)    (Seal.) 

In  Presence  of 

State  of 

County  of 

I,  Justice  of  the  Peace  in  and  for  said  county,  do  hereby 

certify  that  this  lease  and  mortgage  was  duly  acknowledged  before  me  by  the 
above-named  {name  of  lessee)  this  day  of  A.D.  18. 

{Seal.) 
(225.) 

A  Building  Lease. 

This  Deed  of  Lease,  Made  and  entered  into,  in  duplicate,  this 
day  of  A.D.  iS     ,  between  {name  of  lessor)  of  County 

of  and  State  of  party  of  tlie  first  part,  and  {name 

of  lessee)  of  County  of  and  State  of 

party  of  the  second  part : 

V/itnesseth,  That  the  said  party  of  the  first  part,  in  consideration  of  the 
covenants,  agreements,  and  stipulations  hereinafter  mentioned,  as  well  as  the 
yearly  rent  of  dollars,  to  be  paid  to  him  in  four  equal  quarterly 

payment's  in  each  year  (the  first  payment  to  be  made  on  the 
day  of  A.D.  18     ),  doth  by  these  presents  lease  to  the  said  party 

of  the  second  part  for  the  term  of  years,  which  said  term  begins  on 

the  day  of  iS     ,  the  following-described  lot  of  land,  to 

wit  {here  describe  the  premises  as  in  Eorm  211). 

The  said  party  of  the  second  part,  for  himself  and  his  heirs,  hereby  cove- 
nants with  said  lessor  and  his  heirs  to  pay  said  rent  as  aforesaid,  and  also 
to  pay  all  city,  county,  and  State  taxes,  and  all  other  taxes  and  demands  of 
every  description,  nature,  or  kind' whatever,  v/hich  may  from  time  to  time  be 
legally  required  or  demanded  of  said  premises,  whether  general  tax  or  special 
tax. 

Every  failure,  first,  to  pay  the  said  rent,  or  any  part  thereof,  when  it  :s 
respectively  made  payable ;  or,  second,  to  pay  the  said  city,  county,  and 
State  taxes,  and  all  other  taxes  and  demands,  or  any  part  thereof  (legally 
required  or  demanded  of  said  premises,  within  the  year  the  same  shall 
become  due,  assessed  to  either  said  lessor,  his  heirs  or  representatives,  or 


FORMS  OF  LEASES. 


^ZZ 


to  said  lessee  or  his  representatives);  or,  third,  to  keep  and  perform  any  of 
the  other  covenants,  agreements,  or  stipulations  herein  mentioned,  shall 
make  and  create  a  forfeiture  of  this  lease,  and  a  termination  of  the  term  for 
which  the  above  premises  were  let,  and  all  the  estate  hereby  conveyed  shall 
be  absolutely  void,  if  so  determined,  at  any  day  or  time  however  distant,  after 
such  failure,  by  notice  in  writing  to  that  effect,  given  by  said  lessor,  his 
heirs  or  i^ssigns,  to  said  lessee  or  his  assigns ;  which  said  notice  may  be 
served  by  posting  a  copy  or  duplicate  of  the  same  up  at  one  of  the  most 
public  places  on  said  premises,  or  by  delivering  a  copy  or  duplicate  of  such 
notice  to  said  lessee  or  his  assigns. 

This  lease  of  said  premises,  or  any  part  thereof,  is  nyt  to  be  assigned, 
under  penilty  of  forfeiture,  without  the  written  consent  of  said  lessor,  his 
heirs  or  assigns.  At  the  expiration  of  this  lease,  the  said  premises  to  be 
delivered  to  said  lessor,  his  heirs  or  assigns.  The  said  lessee,  and  all  who 
hold  under  him,  hereby  engage  to  pay  double  rent  for  every  day  they  or  any 
one  else  in  their  name  shall  hold  on  to  the  whole  or  any  part  of  said  prem- 
ises, after  the  expiration  of  this  lease,  or  after  forfeiture  thereof. 

The  said  lessee  is,  under  penalty  of  forfeiture,  bound  to  keep  said  prem- 
i.iises  free  from  any  disorderly,  bawdy,  or  gambling  establishments,  dram- 
shops, tippling-shops,  beer-houses,  or  any  nuisances  whatsoever.  And  in 
( ase  of  any  forfeiture  of  this  lease,  the  said  lessor,  his  heirs  and  assigns, 
may  forthwith  take  possession  of  said  premises,  with  all  the  improvements 
thereon,  and  shall  be  entitled  to  the  same,  any  custom,  usage,  or  law  to  the 
contrary  notwithstanding. 

All  improvements  erected  on  said  premises  by  said  lessee  or  his  assign.'i, 
or  by  any  one  who  may  claim  under  them,  are  bound  for  the  payment  of  each 
quarterly  installment  of  rent,  and  for  the  city,  county,  and  State  taxes,  anl 
all  other  taxes  and  demands  as  aforesaid,  and  for  anv  arrears  of  rent  or 
<axes :  and  in  case  of  the  punctual  payment  of  the  rent  and  taxes,  as  herei  'i 
specified,  the  said  lessee  or  his  assigns  is  hereby  authorized  to  remove  a ! 
such  improvements  (and  no  others),  at  the  expiration  of  this  lease,  which  ht 
or  any  one  who  may  claim  under  him,  may  have  erected  on  said  premises 
during  said  term. 

In  Testimony  V7hereof,  The  parties  hereto  have  hereunto  set  their 
hands  and  seals  to  duplicate  leases  the  day  and  year  aforesaid. 

{SignatJcre  of  lessor)     (Seal) 
{Signature  of  lessee)    (Seal) 

In  Presence  of 

(226.) 
A  Mining  Lease. 

This  Indenture,  Made  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  between  (name  and 

residence  of  the  lessor^  of  the  first  part,  and  (name  and  reside7ice  of  the  lessee) 
of  the  second  part,  witnesseth,  That  the  said  party  of  the  first  part,  for  and  in 


634 


LEASES. 


consideration  of  tlie  covenants  and  agreements  liereinafter  contained  on  the 
part  of  the  said  party  of  the  second  part,  and  of  one  dollar  in  hand  paid 
to  the  said  party  of  the  first  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, has  granted  and  conveyed,  and  by  these  presents  does  grant  and 
convey  to  the  said  party  of  the  second  part,  his  heirs,  executors,  administra- 
tors, and  assigns,  the  right  of  entering  in  and  upon  the  lands  hereinafter 
described,  for  the  purpose  of  search  ng  for  mineral  and  fossil  substances, 
and  of  conducting  mining  and  quarrying  operations,  to  any  extent  he  or  they 
may  deem  advisable  (but  not  to  hold  possession  of  any  part  of  said  lands  for 
any  other  purpose  whatsoever)  paying  for  the  site  of  buildings  of  any  kind, 
necessary  thereto,  a  reasonable  rent. 

The  said  lands  are  situated  {here  state  the  situation  of  the  premises  leased, 
and  describe  them  by  metes  and  bounds,  dimensiojzs,  and  references  to  other 
boundaries,  so  as  to  distinguish  thein  perfectly}) 

And  the  said  party  of  the  second  part  hereby  agree  that  he  or  his  heirs, 
executors,  administrators,  or  assigns,  will  pay  or  cause  to  be  paid  to  the  said 
party  of  the  first  part,  his  heirs  or  assigns,  an  annual  rent  of  the  amount  of 
dollars,  in  four  equal  quarterly  payments,  payable  severally  on  the  fol- 
l\nving  days  {Jiere  state  the  days  when  the  payments  are  to  be  made,  or  what' 
ever  other  terms  or  titnes  are  agreed 7ipo7i)  and  also  covenants  that  no  damage 
shall  be  done  to  or  upon  said  lands  and  premises,  other  than  may  be  neces- 
sary in  conducting  said  operations.  And  it  is  agreed  and  covenanted  by  and 
between  the  parties  hereunto,  that  this  lease  shall  be  and  remain  in  full  force 
and  effect  (subject  to  the  proviso  hereinafter  stated)  years  from 

the  date  hereof,  and  no  longer.  But  the  said  parties  of  the  first  and  the 
second  part,  each  for  themselves,  their  heirs,  executors,  administrators,  and 
assigns,  covenant  and  agree,  and  this  indenture  is  made  with  this  express 
proviso,  that  if  no  mineral  or  fossil  substance  be  mined  or  quarried,  as  now 
contemplated  by  said  parties,  within  the  period  of  years  from  the 

present  time,  then  these  presents,  and  everything  contained  herein,  shall 
cease  and  be  forever  null  and  void. 

In  Testimony  Whereof,  the  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

{Signature  of  lessor.)    {Seal.) 
{Signature  of  lessee.)    {Seal.) 

Signed,  Sealed,  and  Delivered  in  Presence  of, 

(227.) 

A  Lease  of  Land  supposed  to  contain  Oil,  Salt,  or  other 

Minerals. 

Articles  of  Agreement,  Made  and  concluded  this  day  of 

A.D.  1 8      between  {na?ne  of  lesso?')  of  the  township  of 
County  of  and  State  of  party  of  the  first  part,  and 

{natne  and  residence  of  the  lessee)  party  of  the  second  part.     Witnesseth, 


FORMS  OF  LEASES. 


635 


That  the  said  part)-  of  the  first  part,  for  himself  and  his  heirs,  executors, 
administrators,  and  assigns,  for  and  in  consideration  of  the  sum  of  one  dol- 
lar, the  receipt  of  which  is  hereby  acknowledged,  and  for  the  further  consid- 
eration hereinafter  mentioned,  and  on  account  of  covenants  hereinafter  con. 
tained,  hereby  leases  to  the  said  party  of  the  second  part,  his  heirs,  executors, 
administrators,  and  assigns,  the  following-described  piece  or  parcel  of  land, 
situated  in  the  township  of  County  of  and  State  of 

bounded  and  described  as  follows  {(describe  the  premises  as  in 
the  preceding  For/n).  The  said  land  more  fully  described  in  deed  of  convey- 
ance by  {name  of  the  grantor  to  the  lessor)  to  the  said  party  of  the  first  part, 
containing  acres,  more  or  less,  for  the  purpose  of  boring,  mining, 

and  operating  for  oil,  salt,  and  other  minerals  on  said  land,  for  the  term  of 
years. 

Said  second  jaarties  to  have  the  exclusive  right  to  mine  for  oil,  salt,  and 
other  minerals,  on  said  land,  during  the  continuance  of  said  term  ;  to  have 
the  privilege  of  taking  sufficient  coal  and  wood  for  conducting  said  boring 
j.nd  mining  operations,  and  timber  for  derricks  and  mill-frames  and  for 
lefineries,  and  the  right  to  erect  all  necessary  buildings  upon  said  pi-emises 
fjr  carrying  on  the  business  of  boring  for  oil,  and  mining,  refining,  and 
storing  away  oil  and  other  minerals  ;  and  to  have  the  necessary  roads  to  and 
from  any  well  or  wells  that  may  be  bored,  or  any  mines  ;  and  to  have  pos- 
session whenever  they  shall  be  ready  to  commence  operations.  And  in  case 
successful  in  obtaining  oil  or  other  minerals,  agree  to  deliver  to  the  said 
party  of  the  first  part  {here  state  the  part  or  proportion  tvhicJi  is  to  be  given 
to  the  lessor)  of  all  oil,  salt,  or  other  minerals  obtained.  Said  party  of  the  first 
part  to  find  his  own  barrels,  and  remove  the  oil  and  other  minerals  belonging 
to  him,  as  often  as  required  by  the  second  jDarties.  And  in  case  said  second 
parties  should  not  be  successful  in  obtaining  oil  or  other  minerals,  they  shall 
have  the  right  to  remove  all  engines,  tools,  machinery,  and  buildings.  And 
further,  it  is  agreed  that  said  second  parties  have  the  right  to  sub-lease  said 
land  for  the  purpose  of  boring  for  oil  or  other  minerals  ;  the  said  lessee  or 
lessees  being  granted  all  the  rights  and  privileges  herein  granted  to  the  said 
party  of  the  second  part. 

Witness  our  hands  and  seals  this  day  of  ,  18 

{Signature  of  lessor.)     {Seal.) 
{Signatnre  of  lessee.)     {Seal.) 

Witnesses. 

Personally  appeared  before  me,  a  Justice  of  the  Peace 

in  and  for  the  township  of  within  the  County  aforesaid 

and  did  acknowledge  the  signing  and  sealing  of  the  above  agreement  to  be 
act  and  deed. 
Given  under  my  hand  this  day  of  18 

Justice  of  the  Peace. 


e^^e  LEASES. 

(228.) 
An  Assignment  of  a  Lease. 

Know  all  Men  by  these  Presents,  That  I  (jiame  and  residence  of  as- 
signor) fur  and  in  consideration  of  the  sum  of  dollars,  lawful 
money  of  the  United  States,  to  me  duly  paid,  by  {iiaine  and  residence  of 
assignee)  have  sold,  and  by  these  presents  do  grant,  convey,  assign,  trans- 
fer and  set  over,  unto  the  said  {najiie  of  assignee)  a  certain  indenture 
of  lease,  bearing  date  the  day  of  in  the  year  one 
thousand  eight  hundred  and  made  by  {name  of  the  lessor  in 
the  lease  assigned)  whereby  he  leases  to  me  the  following-described  prem- 
ises {fiere  describe  the  pre7nises  briefly),  with  all  and  singular  the  premises 
therein  mentioned  and  described,  and  the  buildings  thereon,  togedier  with 
the  appurtenances. 

To  Have  and  to  Hold  the  same  unto  the  said  (the  name  of  the 
assignee)  and  his  assigns,  from  the  day  of  for  and 

during  all  the  rest,  residue,  and  remainder  yet  to  come  of  and  in  the 
term  of  years  mentioned  in  the  said  indenture  of  lease,  and 

all  my  rights  and  privileges  in  and  under  said  lease  ;  subject  nevertheless  to 
the  rents,  covenants,  conditions,  and  provisions  therein  also  mentioned. 
And  I  do  hereby  covenant,  grant,  promise,  and  agree  to  and  with  the  said 
(name  of  the  assignee) 'Ca^Li  the  said  assigned  premises  now  are  free  and 
clear  of  and  from  all  former  and  other  gifts,  grants,  bargains,  sales,  leases, 
judgments,  executions,  back  rents,  taxes,  assessments,  and  incumbrances 
whatsoever. 

In  Witness  "Whereof,  I  have  Hereunto  set  my  hand  and  seal  this 
day  of  one  thousand  eight  hundred  and 

{Signaturei^     {Seal.) 
Sealed  and  Delivered  in  the  Presence  of 

(229.) 

Landlord's  Notice  to  Quit  for  Non-Payment  of  Rent— Short 

Form. 

State  of  ss.  A  D.  i8 

To  {name  of  tenant).  You  being  in  possession  of  the  following-described 
premises,  which  you  occupy  as  my  tenant  {here  describe  the  premises  stiffi.- 
ciently  to  identify  them)  in  the  city  {o>-  toivnship)  of  and  county 

aforesaid,  are  hereby  notified  to  quit  and  deliver  up  to  me 
the  premises  aforesaid,  in  fourteen  days  from  this  date,  according  to  law, 
your  rent  being  due  and  unpaid.  Hereof  fail  not,  or  I  shall  take  a  due  course 
of  law  to  eject  you  from  the  same. 

Witness.  {Signature.) 


FORMS  OF  LEASES,  ETC.  ^^,7 

(230.) 

liandlord's  Notice  to  Quit  for  Non-Payment  of  Rent— an- 
other Form. 

State  of  City  of  {date)  i8 

You  are  hereby  notified  to  quit  tlie  premises  situate  {state  the  situation 
of  the  premises,  giving  township  or  city,  and  street  and  number)  whicli  I 
have  leased  to  you,  reserving  rent,  or  pay  and  satisfy  the  rent  due  and 
in  arrear,   being  $  which  amount  was  due   on  the  day  of 

iS  and    is    hereby   demanded   (you    having   neglected   or 

refused  to  pay  the  amount  so  reserved,  as  oflen  as  the  same  has  grown  due, 
according  to  the  terms  of  our  contract,  and  there  being  no  goods  on  the 
premises  adequate  to  pay  the  rent  so  reserved,  except  such  articles  as  are 
exem  It  from  levy  and  sale  by  the  laws  of  this  State)  within 
days  from  the  date  hereof,  or  I  shall  proceed  against  you  as  the  law  directs. 
Yours,  etc. 

(^Signature.) 
To  {name  of  tenant) 

(231.) 

Landlord's  Notice  to  pay  Rent  due,  or  Quit. 

State  of  ) 

>  ss.  ' 

County  of  ) 

{Name  of  landlord)  landlord,  against  {name  of  tenant)  tenant. 

Take  Notice,  That  you  are  justly  indebted  unto  me  in  the  sum  of 
lor  rent  of  {hotne,  store,  or  other  premises,  describing  them  generally)  from 
{date  7uhen  the  rent  was  djte  and  payable),  which  you  are  required  to  pay  on 
or  before  the  expiration  of  three  days  from  the  day  of  the  service  of  this  notic(t, 
or  surrender  up  the  possession  of  the  said  premises  to  in  default 

of  which  shall  proceed  under  the  provisions  of  law  to  recover 

the  possession  thereof. 

Dated  this  day  of  ,  i8 

{Name  of  the  landlord)  Landlord. 

To  {?tame  of  the  tenant)  Tenant,  in  possession  of  the  premises  above 
specified. 

(232.) 
Landlord's  Notice  to  leave  at  End  of  the  Term. 

To  {name  and  address  of  the  tenant?) 

Sir, — Being  in  the  possession  of  a  certain  messuage  or  tenement,  with  the 
appurtenances,    situate  {describe  the  premises  briefly)  which  said  premises 
were  demised  to  you  by  me  for  a  certain  term,  to  wit,  from  the 
day  of  A.D.  i8         until  the  day  of  A.D, 

1 8        ,  and  which  said  term  will  terminate  and  expire  on  the  day  and  year 
last  aforesaid,  I  hereby  give  you  notice,  that  it  is  my  desire  to  have  again 


638  LEASES. 

and  re-possess  the  said  messuage  or  tenement,  with  the  appurtenances,  and 
I  therefore  do  hereby  require  you  to  leave  the  same  upon  the  expiration  of 
the  said  hereinbefore  mentioned  term. 

Witness  my  hand  this  day  of  city  of 

A.D.  18 

{Signature^ 

(^Witness) 

(233.) 
Landlord's  Notice  to  Determine  a  Tenancy  at  "Will. 
State  of  ss.  A.D.  18 

To  {natfie  of  tenafit).  You  being  in  possession  of  the  following-described 
premises,  which  you  occupy  as  my  tenant  at  will  {describing  them  stifficiently 
to  identify  them)  in  the  {city  and  street)  aforesaid,  are  hereby  notified  to  quit 
and  deliver  up  to  me  the  premises  aforesaid  {on  sjich  a  day,  stating  here  the 
day  as  far  distant  as  is  made  necessary  by  the  reqtiisite  length  of  notice) 
according  to  law,  it  being  my  intention  to  determine  your  tenancy  at  will. 
Hereof  fail  not,  or  I  shall  take  a  due  course  of  law  to  eject  you  from  the 
same. 

{^Witness.)  {Signature.) 

(234.) 
Receipt  for  Rent,  in  use  in  New  York. 
Rent  payable 

The  tenant  mentioned  below  hereby  agrees  to  pay  the  rent  of  the  premi- 

.••.es  occupied  and  used  by  on  the  first  day  of  the  term  ;  and 

engages  to  clean  the  entries,  stairs,  stoops,  and  privy  thereof,  weekly,  in  turn 

with   other  occupants,  and  not  incumber  the  same  with  furniture,  fuel,  or 

rubbish,  nor  keep  any  hog,  dog,  or  fowl,  nor  deposit  ashes  or  garbage  on  said 

premises,  nor  in  the  sinks  or  privies,  nor  split  wood  on  the  hearth,  floor,  or 

yard. 

New  York,  iS 

Received  from  {name  of  tenant  paying)  dollars,  for 

month's  rent,                         from  18         to                        18        for 

{stone,  brick,  or  other)  house,  No  Street,  in  the  city  of  New 

York. 

$ 

(235.)] 

Lease  in  use  in  the  Province  of  Quebec. 
On  this  day,  the  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  before  the  undersigned  Public  Notar     , 

duly  commissioned  and  sworn  in  and  for  the  heretofore  Province  of  Lower 
Canada,  now  the  Province  of  Quebec,  in  the  Dominion  of  Canada,  residing  in 
the  city  of  Montreal,  in  the  said  Province,  appeared  {natne,  residence,  and 
occupation  of  the  lessor)  who  declared  to  have  let  and  leased,  and  by  these 


FORMS  OF  LEASES,  ETC.  5^0 

presents  do  let  and  lease,  and  promise  to  procure  peaceable  enjoyment  anto 
{na/ne,  residence^  and  occupation  of  lessee)  present  and  accepting  lessee     for 

for,  during,  and  until  tlie  full  end  and  term  of 
to  be  accounted  and  reckoned  on  and  from  the  day  of  the  month 

of  in  the  year  {insert  a  description  of  the  premises 

leased,  as  directed iti  Form  21 1).     With  the  whole  the  said  lessee  con- 

tent and  satisfied,  having  seen  and  viewed  the  same. 

The  present  lease  is  thus  made  for  and  in  consideration  of  the  sum  of 
current  money  of  the  said  Province  of  Canada,  per  during 

the  Slid  term,  which  the  said  lessee  do  hereby  covenant,  promise,  and 
agree,  and  bind  and  oblige  to  well  and  truly  pay,  or  cause  to  be 

paid,  to  the  said  lessor     or  legal  representatives,  in  and  by  even 

and  equal  payments  of  each  ;  the  first  payment  whereof 

to  become  due  and  payable  on  the  day  of  now  next 

ensuing,  and  thus  to  continue  as  aforesaid  during  all  the  said  term  ;  and,  in 
furtlier  consideration,  that  the  said  lessee  shall  and  do  hereby  promise 
and  agree,  and  bind  and  oblige  to  pay  the  railway  tax,  the  park 

tax,  the  school  tax,  ihe  water  tax,  the  yearly  assessments  of  said  leased 
premises,  and  every  other  tax,  charge,  and  burden  which  may  be  imposed 
or  levied  thereon,  during  the  said  term  ;  and,  further,  that  the  said  lessee 
shall  furnish  the  said  leased  premises  with  a  sufficient  quantity  of  household 
furniture  or  goods  to  secure  the  payment  of  the  said  rent,  keep  the  premises 
in  re]Dairs  {reparations  locatives),  during  the  said  term,  and  deliver  the  same 
at  the  expiration  of  the  present  lease  in  as  good  order,  state,  and  condition 
as  the  same  may  be  found  in  at  the  commencement  of  the  same,  reasonable 
te.ir  and  wear  and  accidents  by  fire  excepted. 

It  is  expressly  agreed  by  and  between  the  said  parties  that  the  said 
lessee     shall  not  transfer  right  in  the  present  lease,  or  sublet  any 

part  or  portion  of  the  above  rented  premises,  without  the  consent,  in  writinc*^ 
of  the  said  lessor     or  representatives. 

The  said  lessee  shall  not  make  any  alteration  in  the  said  leased  premise* 
without  the  consent  of  the  said  lessor     or  representatives;  and,  in 

case  any  such   alterations  should  be  made,  then  the  said  lessee     shall  be 
bound  to  put  the  said  leased  premises  in  the  same  state  in  which  they  were 
at  the  commencement  of  the  present  lease,  unless  the  said  lessor      prefer 
that  the  said  alterations   should   remain,  without  any  compensation   being 
allowed  to  the  said  lessee     for  such  alteration. 

Should  any  grosses  reparations  be  deemed  necessary  in  the  said  leased 
premises,  the  said  lessee  shall  permit  the  same  to  be  performed,  without 
pretending  or  demanding  any  reduction  in  the  said  rent,  damages,  interest, 
or  compensation  ;  provided  always,  that  the  said  repairs  be  indispensable, 
and  be  finished  within  a  reasonable  time. 

The  said  lessee  shall,  during  the  said  term,  conform  to  the  rules  and 
regulations  of  police,  and  pay  the  sweeping  of  the  chimneys  of  said  leased 
premises  during  the  said  term.     The  said  lessee     shall,  during  the  last  threa 


640  LEASES. 

months  of  the  present  lease,  allow  such  person  or  persons  as  maybe  desirous 
of  obtaining  a  lease  of  the  said  premises  to  visit  the  same,  and  will  suffer 
handbills  for  that  purpose  to  be  placarded  and  left  on  the  said  premises. 

The  said  lessee  shall  pay  all  extra  premium  of  assurance  that  the  com- 
pany, at  which  the  premises  now  leased  may  be  insured,  shall  exact  in  con- 
sequence of  the  business  or  works  done  and  carried  on  therein  by  the  said 
'essee. 

And  for  the  execution  hereof  the  said  parties  to  these  presents  have 
flecled  domiciles;  to  wit,  the  said  lessee  at  and  upon  the  premises  now 
leased,  and  the  said  lessor     at  place  of  residence  above  described, 

where,  i&c. 

Done  and  Passed  at  the  said  city  of  Montreal,  i.i  the  office  of 
the  said  notar     ,  under  the  number  thousand  hundred  and 

on  the   day,  month,  and  year  first  above  and  before  written,  and 
signed  by  the  said  with  and  in  the  presence  of  said  notar     , 

these  presents  having  been  first  duly  read  to  the  saii  parties  by  said 
notar    . 

{Signatures^     (Seals.) 
(236.) 

Lease  in  use  in  the  Province  of  Quebec,  known  as 
"Private  Lease." 

This  Indenture  of  Lease,  Made  between  (name,  residence,  atid  occtipa- 
{io7i  of  lessoi'),  of  the  first  part,  and  {iiame,  residence,  and  occupation  oj 
lessee)  of  the  second  part, 

Witnesseth,  That  the  said  do    hereby  lease  for  the  term  o< 

year    ,  from  the  unto  the  said  hereby  present 

and  accepting  for  that  is  to  say  {here  describe  the  premises  leased 

with  sufficient  distinctness)  the  said  leased  premises  being  well  known  to 
the  said  lessee  having  seen  and  examined  the  same  before  the  execution 
of  these  presents,  and  with  the  said  leased  premises  content  and  satis- 

fied. This  lease  is  thus  made  subject  to  the  following  stipulations:  viz., 
that  the  lessee  shall  make  all  repairs  customarily  made  by  tenants,  during 
the  present  lease,  and  at  the  termination  thereof  shall  peaceably  surrender 
the  said  premises  in  the  like  condition  as  when  taken  possession  of,  reason- 
able tear  and  wear  being  allowed  ;  that  shall  constantly  keep  the  hereby 
leased  premises  furnished  according  to  law  for  the  security  of  the  rent 
hereinafter  stipulated  ;  that  shall  not  make  over  interest 
in  the  present  lease,  or  sublet  the  whole  or  any  part  of  the  premises  hereby 
leased,  without  the  consent  of  the  lessor  being  first  obtained  in  writing  for 
that  purpose. 

The  said  lessee  promise  to  pay  the  yearly  taxes  or  assessments  for  and 
during  the  said  term,  at  whatever  rate  or  amount  or  for  whatever  purpose 
the  same  may  be  levied,  school  tax  and  all  other  taxes  and  assessments,  and 
perform  all  the  requirements  of  the  police  and  fire  departments,  to  the  per- 
fect exoneration  of  the  lessor     ;  and  during  the  last  three  months  of  the 


FORMS  OF  LEASES,  ETC.  641 

present  lease   shall  allow  such  person   or  persons  as  may  be  desirous  of 
obtaining  a  lease  of  the  said  premises,  to  visit  the  same  at  seasonable  hours* 
and  sliall  also  permit  notices  of  such  intended  lease  to  be  put  up  on  th 
premises. 

The  lessee  shall  also  pay  any  and  all  extra  premiums  levied  in  conse 
quence  of  the  business  that  may  be  carried  on  by 

It  is  especially  and  distinctly  understood  and  agreed  by  and  between  the 
pirties.  that  the  furniture,  goods,  chattels,  and  effects  of  every  kind  and 
description  belonging  to  the  lessee  shall  be  security  for  the  payment  of  tl  e 
rent  for  the  entire  term,  and  shall  not  be  removed  from  the  said  leased 
premises  until  the  rent  for  the  whole  term  be  paid,  even  if  not  due,  any  law, 
usage,  or  custom  to  the  contrary  notwithstanding,  for  without  this  condition 
the  present  lease  would  not  have  been  made  ;  nothing  herein  contained  to 
be  deemed  or  construed  as  comminatory  or  evasive,  but  of  rigor. 

This  lease  is  further  made  in  consideration  of  the  sum  of  current 

money  of  this  Province,  which  the  said  lessee    bind    and  oblige  to  well 

and  truly  pay  to  the  said  lessor     or  lawful  representatives,  in  equal 

payments  of  the  first  payment  whereof  to  be  due  and 

payable  on  the  next. 

Signed  in  duplicate,  at  Montreal,  this  day  of  in  the  yeai 

of  our  Lord  one  thousand  eight  hundred  and  in  the  presence  of 

{Signatures.)     (Seals.) 

(237.) 

Lease  of  Land  in  use  in  Ontario  and  Other  Provinces. 

This  Indenture,  Made  the  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  ,  between  {name, 

residetice,  atid  ocaipatioji  of  the  lessor),  the  party  of  the  first  part,  and 
{name,  residence,  and  occupation  of  lessee)  the  j^arty  of  the  second  part, 

Witnesseth,  That  in  consideration  of  the  rent,  covenants,  and  agree- 
ments hereinafter  reserved  and  contained,  and  to  be  paid,  observed,  and 
performed  by  the  said  part  of  the  second  part,  executors,  adminis- 

trators, and  assigns,  the  said  part         of  the  first  part     ha     demised 

and  leased,  and  by  these  presents  do     demise  and  lease,  unto  the  said  part 

of  the  second  part  executors,  administrators,  and  assigns,  all  th 

certain  parcel  or  tract  of  land  and  premises  situate,  lying,  and  being 
(di'.sci-ibe  premises  leased  with  sufficient  distinctness  to  identify  them  per- 
fectly). 

To  Have  and  to  Hold  the  said  parcel  or  tract  of  land,  with  the  appuf 
tenances,  unto  the  said  part  of  the  second  part  executors,  administrators, 
and  assigns,  from  the  day  of  one  thousand  eight  hundred 

and  for  the  term  of  from  thence  next  ensuing,  and 

fully  to  be  completed  and  ended,  yielding  and  paying  therefor  unto  the  said 
part     of  the  first  part  executors,  administrators,  and  assigns,  the  yearly 

rent  or  sum  of  of  lawful  money  of  Canada,  by  equal 

41 


642  LEASES. 

payments,  on  the  in  each  and  every  year  during  the  said  term,  the 

first  payment  to  be  made  on  the  day  of  next  ensuing  the 

date  I'lereof. 

And  the  said  part     of  the  second  part  doth  hereby  for  heirs, 

executors,  administrators,  and  assigns,  covenant,  promise,  and  agree  with 
and  to  tlie  said  part    of  the  first  part,  heirs,  executors,  administrators, 

and  assigns,  that  the  said  part     of  the  second  part  executors, 

administrators,  and  assigns,  shall  and  will  well  and  truly  pay,  or  cause  to  be 
paid,  to  the  said  part     of  the  first  part,  executors,  administratcrs,  or 

assigns,  the  said  yearly  rent  hereby  reserved,  at  the  times  and  in  manner 
hereinbefore  mentioned  for  payment  thereof,  without  any  deduction  or 
abatement  whatsoever  thereout,  for,  or  in  respect  of,  any  rates,  taxes,  and 
impositions,  assessment,  or  otherwise  ;  and  will,  during  said  term,  discharge 
and  pay  all  rates,  taxes,  assessments,  and  impositions  now  payable  or  here- 
after to  become  payable  in  respect  of  said  premises  ;  and  also  shall  and  will 
perform  all  statute  labor  in  respect  of  said  premises,  during  the  whole  of  the 
term  hereby  granted. 

Provided  always,  and  it  is  hereby  agreed  by  and  between  the  said 
parties  hereto,  that  if,  at  any  time  or  times  during  the  said  term,  the  said 
rent,  or  any  part  thereof,  shall  be  in  arrear  and  unpaid  for  the  space  of  thirty 
days  after  any  of  the  days  or  times  whereon  the  same  ought  to  be  paid  as 
aforesaid,  then  it  shall  be  lawful  for  the  said  part  of  the  first  part,  heirs, 
executors,  administrators,  or  assigns,  to  enter  into  and  take  possession  of 
the  premises  hereby  demised,  whether  the  same  be  lawfully  demanded  or 
not,  and  the  said  premises  to  have  again,  repossess,  and  enjoy,  as  if  these 
presents  had  never  been  executed,  without  the  let,  hindrance,  or  denial  of 
the  said  part      of  the  second  part,  heirs,  executors,  admin- 

istrators, or  assigns  ;  and,  further,  that  the  non-fulfilment  of  the  covenants 
hereinbefore  mentioned,  or  any  of  them,  on  the  part  of  the  lessee  or  lessees, 
shall  operate  as  a  forfeiture  of  these  presents,  and  the  same  shall  be  con- 
sidered null  and  void  to  all  intents  and  purposes  whatsoever  ;  and  also,  that 
the  said  part  of  the  second  part,  executors,  administrators,  and  assigns, 
shall  not  nor  will,  during  the  said  term,  grant  or  demise,  or  assign,  transfer, 
or  set  over,  or  otherwise,  by  any  act  cr  deed,  procure  or  cause  the  said 
premises  hereby  demised  or  intended  so  to  be,  or  any  part  thereof,  or  any 
estate,  term,  or  interest  therein,  to  be  granted,  assigned,  transferred,  under- 
let, or  set  over  unto  any  person  or  persons  whomsoever,  nor  carry  on  any 
offensive  trade  or  business  on  the  premises,  without  the  consent  in  writing, 
of  the  said  part     of  the  first   part.  heirs  or  assigns,  first  had  and 

obtained. 

And  the  said  part      of  the  second  part  do     hereby  for  heirs, 

executors,  administrators,  and  assigns,  covenant,  promise,  and  agree,  with 
nnd  to  the  said  part     of  the  first  part,  heirs,  executors,  administrators, 

or  assigns,  that  the  said  part     of  the  second  part,  heirs, 

executors,  administrators,  or  assigns,  will,  at  the  end  of  the  term  hereby 


FORMS  OF  LEASES,  ETC.  5^3 

granted,  peaceably  and  quietly  surrender  and  deliver  up  possession  of  the 
said  premises  hereby  demised  to  the  said  part     of  the  first  part  heirs, 

executors,  administrators,  or  assigns. 

In  Witness  Whereof,  The  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

{^Signatures.)     {Seals.) 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 

(238.) 
Short  House  Lease  in  Use  in  Ontario  and  other  Provinces. 

This  Indenture,  Made  the  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  in  pursuance  of  the 

act  respecting  short  forms  of  leases  between  {jtame,  residence,  and  occupa- 
tion  of  the  lessor)  hereinafter  called  the  lessor  of  the  first  part,  and  {name, 
residence,  and  occupation  of  the  lessee)  hereinafter  called  the  lessee  of  the 
second  part, 

Witnesseth,  That  in  consideration  of  the  rents,  covenants,  and  agree- 
ments hereinafter  reserved  and  contained  on  the  part  of  the  said  lessee 
executors,  administrators,  and  assigns,  to  be  paid,  observed,  and  performed, 
he     the  said  lessor    ha         demised  and  leased,  and  by  tliese  presents  do 
demise  and  lease  unto  the  said  lessee,  executors,  administrators,  and 

assigns,  all  th  certain  {describe  the  premises  leased  with  sufficient  jninnte' 
ness  to  define  them  perfectly). 

Together  with  all  the  rights,  members,  and  appurtenances  whatsoever 
to  the  said  premises  belonging  or  appertaining. 

To  Have  and  to  Hold  the  said  demised  premises,  with  their  appur- 
tenances, unto  the  said  lessee,  executors,  administrators,  and  assigns, 
for  and  during  the  term  of  to  be  computed  from  the 
day  of  one  thousand  eight  hundred  and  and  from 
thenceforth  next  ensuing,  and  fully  to  be  completed  and  ended,  yielding  and 
paying  therefor  yearly  and  every  year,  during  the  said  term  hereby  granted 
unto  the  said  lessor,  heirs,  executors,  administrators,  or  assigns,  the 
sum  of  dollars  of  lawful  money  of  Canada,  to  be  payable  on  the 
following  days  and  times  ;  that  is  to  say,  on  the 
days  of  and  in  each  year  during  the  said  term,  the 
first  of  such  payments  to  become  due,  and  be  made,  on  the  day 
of  next,  and  the  last  of  such  payments  to  be  made  in  advance^ 
on  the  day  of  payment  of  rent  preceding  the  expiration  of  the  said  term. 

And  the  said  lessee  covenant  with  the  said  lessor  to  pay  rent,  and  to 
pay  taxes,  and  to  repair  (reasonable  wear  and  tear,  and  accidents  by  fite  or 
tempest  excepted),  and  to  keep  up  fences,  and  not  to  cut  down  timber ;  and 
that  the  said  lessor  may  enter  and  view  the  said  repair :  and  that  the  said 
lessee  will  repair  according  to  notice,  and  will  not  assign  or  sublet  without 
leave,  and  vi^ill  not  carry  on  any  business  that  shall  be  deemed  a  nuisance 


644  LEASES. 

on  said  premises  ;  and  that  he  will  leave  the  premises  in  good  repair.  {If 
there  are  any  other  agreements  between  the  parties,  they  should  be  inserted 
here.) 

And  also,  that  if  the  term  hereby  granted  shall  be  at  any  time  seized,  or 
taken  in  execution,  or  in  attachment,  by  any  creditor  of  the  said  lessee,  or  if 
the  said  lessee  shall  make  any  assignment  for  the  benefit  of  creditors,  or, 
becoming  bankrupt  or  insolvent,  shall  lake  the  benefit  of  any  act  that  maybe 
in  force  for  bankrupt  or  insolvent  debtors,  the  said  term  shall  immediately 
become  forfeited  and  void,  and  the  full  amount  of  the  current 
rent  shall  be  at  once  due  and  payable  ;  and  also,  that  if  the  said  premises  be 
destroyed,  or  so  much  injured  as  to  become  unfit  for  occupation,  by  fire  or 
other  casualty,  not  caused  by  the  wilful  default  or  neglect  of  the  said  lessee, 
his  executors,  administrators,  or  assigns,  the  said  term  hereby  demised  shall 
cease,  and  the  current  rent  shall  be  fully  apportioned,  and  the  due 

proportionate  part  thereof  shall  be  at  once  due  and  payable. 

Proviso  for  re-entry  by  the  said  lessor  on  non-payment  of  rent  or  non- 
performance of  covenants,  or  seizure  or  forfeiture  of  the  said  term  for  any 
of  the  causes  aforesaid  ;  the  said  lessor  covenant  with  the  said  lessee  fon 
quiet  enjoyment. 

In  "Witness  "Whereof,  The  said  parties  to  these  presents  have  hereunto 
set  their  hands  and  seals. 

Signed,  Sealed,  and  Delivered  in  the  Presence  of 

(239.) 
Lease  of  Land  in  use  Generally  in  the  British  Pro"vinces. 

This  Indenture,  Made  the  day  of  in  the  yeai 

of  our  Lord  one  thousand  eight  hundred  and  between  {name, 

residence,  and  occupation  of  the  lessor)  of  the  one  part,  and  {name,  residence, 
and  occupatio7i  of  the  lessee)  of  the  other  part, 

"Witnesseth,  That  for  and  in  consideration  of  the  rents,  covenants,  agree- 
ments, and  provisos  hereinafter  reserved  and  contained,  and  which  by  and 
on  the  part  and  behalf  of  the  said  executors,  administrators,  and 

assigns,  are  to  be  paid,  kept,  done,  and  performed,  he  the  said 
ha        granted,  demised,  leased,  set,  and  to  farm  letten,  and  by  these  presents 
do  grant,  demise,  lease,  set,  and  to  farm  let,  unto  the  said  exec- 

utors, administrators,  and  assigns,  all  that  tract,  piece,  or  parcel  of  land 
situate,  lying,  and  being  on  lot  or  township  number  in  the  County  of 

and  the  Province  of  bounded  and  described 

as  follows  ;  that  is  to  say  {here  describe  the  premises  leased)  contai;iing,  by 
estimation,  acres,  be  the  same  a  little  more  or  less,  together  with 

all  buildings,  woods,  underwoods,  ways,  waters,  watercourses,  profits,  com- 
modities, privileges,  advantages,  and  appurtenances  whatsoever  to  the  said 
sremises  belonging,  or  in  anywise  appertaining. 

To  Have  and  to  Hold  the  said  tract,  piece,  or  parcel  of  land,  and  prem- 


FORMS  OF  LEASES,  ETC.  645 

fses  hereby  demised,  with  their  appurtenances,  unto  the  said 
executors,  administrators,  and  assigns,  from  the  day  of 

f  jr  and  during  and  until  the  full  end  and  term  of  years  from 

thence  next  ensuing,  and  fully  to  be  complete  and  ended  ;  subject,  neverthe- 
Jess,  to  the  quit-rents  to  become  due,  exceptions,  reservations,  covenants, 
easements,  and  conditions  in  the  original  grant  or  letters-patent  of  the  said 
reserved  and  contained.  Yielding  and  paying  therefor  yearly, 
and  in  every  year  during  the  said  term  hereby  granted,  unto  the  said 
heirs  or  assigns,  the  clear  yearly  rent  or  sum  of  without  making 

any  deduction  or  abatement  whatever  for  or  in  respect  of  any  present  or 
future  quit-rents,  land  taxes,  or  other  parliamentary,  legislative,  colonial,  or 
parochial  taxes,  assessments,  payments,  or  impositions  whatsoever,  by 
yearly  payments  ;  that  is  to  say,  on  the  day  of  in 

every  year,  the  first  payment  to  become  due  and  be  paid  on  day 

of  .     And  the  said  do     for  heirs,  exec- 

utors, and  administrators,  covenant,  promise,  and  agree  to  and  with  the  said 

heirs  and  assigns,  in  manner  following  ;  that  is  to  say,  that 
the  said  executors,  administrators,  and  assigns,  shall  and  will, 

from  time  to  time,  and  at  all  times  during  the  continuance  of  the  term  hereby 
granted,  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  said 
heirs  and  assigns,  the  said  yearly  rent  hereby  reserved,  upon  the  days  and 
times,  and  in  the  manner  hereinbefore  mentioned  for  the  payment  of  the 
same,  according  to  the  true  intent  and  meaning  of  these  presents.  And 
also,  the  said  executors,  administrators,  and  assigns,  shall 

and  will  pay,  satisfy,  and  discharge,  or  cause  to  be  paid,  satisfied,  and  dis- 
charged, all  and  all  manner  of  quit-rents,  land  taxes,  and  other  parliamen- 
tary, legislative,  or  parochial  taxes,  rates,  assessments,  payments,  or  impo- 
sitions whatsoever,  now  or  at  any  time  hereafter  during  the  said  term  hereby 
demised,  payable,  or  to  become  payable,  for  or  in  respect  of  the  said  prem- 
'.ses,  or  any  part  of  them,  or  the  said  yearly  rent  or  any  part  thereof. 

Provided  always,  nevertheless,  and  these  presents  are  upon  this 
express  condition,  that  if  the  said  yearly  rent  hereinbefore  reserved,  or  any 
part  thereof,  shall  be  in  arrear  for  the  space  of  after  the  same 

ought  to  have  been  paid  as  aforesaid  (although  no  legal  or  formal  demand 
shall  have  been  made  for  the  same),  that  then,  and  in  every  such  case,  and 
at  all  times  hereafter,  it  shall  and  may  be  lawful  to  and  for  the  said 
heirs  and  assigns,  either  to  sue  or  distrain  for  the  same,  or  into  or  upon  the 
said  demised  premises,  or  into  any  part  thereof,  in  the  name  of  the  whole, 
wholly  to  re-enter,  and  the  same  to  have  again,  retain,  repossess,  and  enjoy, 
as  in  former  state  ;  and  the  said  and  other  occupiers 

and  possessors  thereof,  thereout  and  from  thence  utterly  to  expel,  put  out, 
and  remove,  anything  hereinbefore  contained  to  the  contrary  thereof  in  any- 
wise notwithstanding.     And  the  said  for  heirs  and  assigns, 
do  hereby  covenant,  promise,  and  agree  to  and  with  the  said 
executors,  administrators,  and  assigns,  that           paying  the  said  yearly  rent 


646  MORTGAGES  OF  PERSONAL  PROPERTY. 

hereby  reserved,  and  performing  the  covenants  and  agreements  hereinbefore 
mentioned  and  contained,  and  which  on  part  and  behalf  are  or  ought 

to  be  paid,  done,  and  performed  (subject,  nevertheless,  as  aforesaid),  shall 
and  may  peaceably  and  quietly  have,  hold,  use,  occupy,  possess,  and  enjoy 
the  said  hereby  demised  premises,  with  the  appurtenances,  f  ^r  all  the  term 
hereby  granted,  without  the  lawful  let,  suit,  trouble,  denial,  eviction,  ejection, 
internption,  or  disturbance  whatsoever,  of,  from,  or  by  the  said 
heirs  or  assigns,  or  of,  from,  or  by  any  olher  person  or  persons  lawfully 
claiming  or  to  claim  the  said  hereby  demised  premises,  or  any  part  or  parcel 
thereof. 

In  "Witness  Whereof,  I,  the  said  {name  of  lessor),  have  hereunto  sub- 
scribed my  name  and  affixed  my  seal,  at  on  the  day  of 
in  the  year  of  our  Lord 

{Na7ne  of  grantor.)     (Seal.) 

Executed  and  Delivered  in  the  Presence  of 


CHAPTER   XXXII. 


MORTGAGES  OF  GOODS  AND  CHATTELS,  OR  PERSONAL 
PROPERTY. 

Mortgages  are  now  often  made  of  personal  property.  Any 
instrument  will  answer  the  purpose,  which  would  sufifice  as  a 
bill  of  sale  of  the  property,  and  which  contains,  in  addition  to 
the  words  of  sale  and  transfer,  a  clause  providing  for  the  avoid- 
ance of  it  when  the  debt  is  paid.  I  append  to  this  chapter 
forms  for  this  purpose.  When  the  mortgagor  of  personal 
property  retained  possession,  it  was  formerly  doubtful  what 
security  the  mortgagee  had.  Now,  however,  it  is  generally 
provided  by  statute,  that  the  mortgagor  may  retain  possession, 
if  the  mortgage  be  recorded. 

These  instruments  should  always  be  recorded  according  to 
the  provisions  of  the  statute  of  the  State  in  which  they  are 
made  ;  although  the  general  rule  would  apply  to  them,  that  they 
would  operate  without  record  as  to  all  parties  having  notice  or 
knowledge  of  them.  The  statutes  respecting  mortgages  of 
personal  property  always  provide  for  an  equity  of  redemption, 
which  is  usually  very  much  shorter  than  that  of  land.  A 
frequent  period  is  sixty  days.  The  requirements  of  the  statute 
in  respect  to  notice,  foreclosure,  etc.,  must  be  strictly  followed. 


MORTGAGE  OR  PLEDGE  OF  PERSOXAL  PROPERTY. 


647 


It  used  to  be  thought  that  a  personal  mortgage  might  be  made 
to  cover  property  subsequently  acquired  by  the  mortgagor. 
Thus,  a  dealer  in  dry  goods  would  mortgage  all  his  stock  to 
secure  some  creditor,  and  provide  in  the  mortgage  that  it  should 
operate  upon  all  his  goods  and  merchandise  subsequently 
acquired  by  him.  But  it  has  been  held  that  such  a  clause  has 
no  effect ;  because  no  man  can  make  a  mortgage  of  property 
which  he  does  not  own  at  the  time.  We  give  annexed  to  this 
chapter  the  laws  of  all  the  States  relating  to  mortgages  of 
personal  property. 

THE  PLEDGE  OF  PERSONAL  PROPERTY. 

A  PLEDGEE  is  bound  to  take  ordinary  (not  extreme)  care  of 
the  thing  pledged;  and,  if  it  be  lost  or  injured  for  want  of  such 
care,  he  is  answerable.  He  cannot  use  it,  except  at  his  own 
peril;  that  is,  he  is  liable  for  any  injury  caused  by  using  it, 
even  if  it  was  not  his  fault.  If  the  thing — as  a  horse — needs 
use  for  its  own  safety,  then  the  pledgee  may  use  it  for  this  pur- 
pose, and  is  liable  only  for  an  injury  caused  by  his  negligence. 
He  must  account  with  the  pledgor  for  the  income,  increase,  or 
profits. 

One  difference  between  a  mortgagee  and  a  pledgee  is  this  : 
A  mortgagee  need  not  take  possession,  for  the  mortgagor  may 
retain  it,  and  now  this  is  provided  for,  as  we  have  seen,  by 
recording  the  mortgage.  But  if  a  thing  is  given  in  pledge,  the 
pledgee  must  have  and  keep  possession  of  it. 

The  most  important  difference  is  this.  A  mortgagee  may 
sell  and  transfer  his  mortgage,  and  his  transferee  may  transfer 
it  again,  and  so  on  ;  and  when  the  debt  is  paid,  the  mortgagor 
reclaims  it  from  whomsoever  has  it  then.  But  if  a  pledgee 
sells  the  pledge  before  the  debt  is  due,  it  is  held  that  he  is  at 
once  answerable  to  the  pledgor  for  its  full  value,  although  tha 
debt  be  not  paid. 

Some  cases  of  this  kind  have  been  carried  very  far  in  New 
York.  It  is  held  there, — and  on  grounds  which  may  perhaps 
suffice  to  make  it  law  everywhere, — that  if  A  lends  money  to 
B,  and  takes  stocks  in  pledge,  A  cannot  sell  these  stocks  and 
keep  the  proceeds,  and   replace  the  stock  and  return  it  when 


64S  MORTGAGES  OF  PERSONAL  PROPERTY. 

the  debt  is  paid.  He  can  do  nothing  but  keep  the  stock;  and 
if  he  sells  it,  the  pledgor  may  recover  at  once  its  full  value,  and 
the  pledgee  will  have  no  security  for  his  debt.  In  such  a  case, 
a  pledgee,  being  sued,  offered  the  testimony  of  brokers  and 
others  to  prove  a  uniform  and  established  usage  in  the  city  of 
New  York  thus  to  sell  or  use  pledged  stock  until  the  debt  was 
paid ;  but  the  court  said  the  usage  was  illegal,  and  refused  to 
receive  the  evidence. 

It  is  certain  that  after  the  debt  is  due  and  payable,  and  after 
demand  if  it  be  payable  on  demand,  the  pledgee  may  have  a 
decree  in  chancery  for  a  sale  of  the  pledge,  or  may  sell  it 
himself  r/r^T^z'^r/rc/ he  first  gives  a  reasonable  notice  to  the  pledgor, 
and  then  sells  it,  after  a  reasonable  delay,  in  a  proper  manner, 
by  a  public  sale  at  auction  ;  and  uses  all  reasonable  precautions 
to  get  its  value,  as  by  advertisement,  etc.  ;  and  does  not  buy  it 
himself,  directly  or  indirectly ;  and  conducts  himself  in  all 
respects  honestly  ;  and  then  he  must  account  for  the  proceeds. 

Sometimes  the  parties  agree,  when  the  pledge  is  given,  or 
afterwards,  how  the  pledge  shall  be  treated,  or  how  sold  if  not 
redeemed,  etc.  ;  and  such  agreements,  if  fair  and  reasonable, 
would  undoubtedly  be  binding  on  both  parties. 

It  is  agreed  that  negotiable  paper  is  excepted  from  the 
common  rule  ;  and  the  pledgee  of  that  may  sell  or  discount  it 
before  the  debt  is  due  ;  and  must  account  for  it,  or  its  proceeds, 
if  the  debt  is  paid  and  the  paper  redeemed,  or  for  the  balance 
if  he  applies  it  to  payment  of  the  debt. 

A  loan  of  stock  is  not  like  a  pledge  of  stock,  because  it 
authorizes  the  borrower  to  sell  or  pledge  it,  or  use  it  in  any 
way,  at  any  time ;  but  he  must  replace  and  return  the  same 
quantity  of  the  same  stock,  when  it  is  called  for.  If  he  could 
not  thus  make  use  of  the  stock,  the  loan  of  it  would  be  of  no 
benefit  whatever  to  the  borrower.  But  he  cannot  thus  use 
stock  pledged  to  him,  unless  by  a  special  agreement  which 
permits  this  use. 

A  pledgee,  who  receives  a  pledge  to  secure  one  or  more 
specific  debts,  cannot  retain  it  to  secure  other  and  further 
debts  of  the  pledgor,  unless  with  his  consent.  This  consent 
may  be  express,  or  implied  from  words  or  circumstances  which 
show  that  such  was  the  understanding  of  the  parties. 


FOIiMS  OF  MORTGAGES  OF  PERSONAL  PROPERTY. 


649 


(240.) 
A  Mortgage  of  Personal  Property. 

Know  all  Men  by  these  Presents,  That  I  {7iaine  of  viorfgagor)  of  tha 
town  of  County  of  and  State  of  for 

and  in  consideration  of  dollars,  to  me  in  hand  paid  by  {iiaiiti 

of  mortgagee)  of  the  town  of  County  of  and  State 

aforesaid,  do  sell  and  convey  to  the  said  {name  of  mortgagee)  tlie  following 
goods  and  chattels,  to  wit  {list  or  schedule  of  the  articles,  specifying  tJievi 
tulth  sufficient  distinctness  to  make  it  certain  what  they  are)  warranted  free 
of  incu'nbrance,  and  against  any  adverse  claims  :  Upon  condition,  that  if  the 
said  {name  of  the  7jiortgagor)  pay  to  the  said  {name  of  the  mortgagee)  dolLirs 
and  interest,  in  year     ,  agreeably  to  a  promissory  note  of  this  date, 

for  that  sum,  payable  to  the  said  {name  of  mortgagee)  or  order,  on  demand, 
with  interest,  this  deed  shall  be  void,  otherwise  in  full  force  and  effect. 

The  aforesaid  Parties  Agree,  That,  until  the  condition  of  this  instru- 
ment is  broken,  the  said  property  may  remain  in  possession  of  the  said  {name 
of  mortgagor),  but  after  condition  broken  the  said  {name  of  mortgagee)  may 
at  his  pleasure  take  and  remove  the  same,  and  may  enter  into  any  building 
or  premises  of  the  said  {name  of  the  mortgagor)  for  that  purpose. 

Witness  our  hands  and  seals  this  day  of  A.D. 

{Signature  of  mortgagor.)     {Seal.) 
{Signature  of  mortgagee.)     {Seal.) 

Sealed  and  Delivered  in  the  Presence  of 

State  of  '\ 

•  >-ss. 

County  of  ) 

Be  it  Remembered,  That  on  this  day  of 

eighteen  hundred  and  before  me,  the  undersigned.  Notary  Pub- 

iic  in  and  for  said  County  and  State,  duly  commissioned  and  qualified,  came 
who  is  known  to  me  to  be  the  same  person  whose  name  is  sub- 
scribed to  the  foregoing  instrument  of  writing,  as  party  thereto,  and  he 
acknowledged  the  same  to  be  his  act  and  deed,  for  tlie  purpose  therein  men- 
tioned. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
official  seal,  at  office,  in  the  city  of  the  day  and  year  last  afore- 

said. 

Notary  Public. 
(241.) 

A  Mortgage  of  Personal  Property,  with  Warranty. 

Know  all  Men  by  these  Presents,  That  I,  {7iame  and  residence  of 
mortgagor)  in  consideration  of  the  sum  of  to  me  in  hand  paid  b) 

{name  and  residence  of  mortgagee)  \\\Q.  receipt  whereof  is  hereby  acknowl' 


650 


MORTGAGES  OF  PERSONAL  PROPERTY. 


edged,  have  granted,  bargained,  and  sold,  and  by  these  presents  do  grant, 
bargain,  and  sell,  unto  the  said  {name  of  niorti^agee)  the  following  articles 
of  personal  property  ;  that  is  to  say  {list  or  schedule  as  in  Form  240). 

To  Have  and  to  Hold  all  and  singular,  the  said  goods  and  chattels,  unto 
the  said  {na?>ie  of  the  iiiortgagee)  and  his  executors,  administrators,  and  assigns, 
to  his  and  their  use  forever.  And  I  the  said  mortgagor,  for  myself  and  for 
my  executors  and  administrators,  do  covenant  to  and  with  the  said  mortgagee, 
and  with  his  executors,  administrators,  and  assigns,  that  I  am  lawfully  pos- 
sessed cf  the  said  goods  and  chattels,  as  of  my  own  property  ;  that  the  same 
are  free  from  all  incumbrances,  and  that  I  will,  and  my  execu- 

tors and  administrators  shall,  warrant  and  defend  the  same  to  the  sa'd  mort- 
gagee, his  executors,  administrators,  and  assigns,  against  the  lawful  claims 
and  demands  of  all  persons. 

Provided  Nevertheless,  That  if  the  said  mortgagor,  his  executors  or 
administrators,  shall  well  and  truly  pay  unto  the  said  mortgagee,  his  execu- 
tors, administrators,  or  assigns,  the  sum  of  dollars,  in  • 
months  from  the  date  hereof  {or  on  a  certain  day,  stating  the  day  when  the 
money  is  to  be  paid)  with  interest  at  per  cent.,  then  this  deed,  as  also 
a  certain  promissory  note  bearing  even  date  herewith,  signed  by  the 
said  mortgagor,  whereby  he  promises  to  pay  the  said  mortgagee  the  said 
sum  and  interest  at  the  time  aforesaid,  shall  both  be  void  ;  otherwise  sha  1 
remain  in  full  force  and  virtue. 

And  Provided  Also,  That  until  default  by  the  said  mortgagor,  or  his 
eyecutors  and  administrators,  in  the  performance  of  the  condition  aforesaid, 
or  of  some  part  thereof,  it  shall  and  may  be  lawful  for  him  or  them  to  keep 
possession  of  the  said  granted  property,  and  to  use  and  enjoy  the  same  ;  but 
in  case  of  such  default,  or  if  the  same  or  any  part  thereof  shall  be  attached,' 
at  any  time  before  payment  as  aforesaid,  by  any  other  creditor  or  creditors 
of  the  said  mortgagor,  or  if  the  said  mortgagor,  or  his  executors  or  adminis- 
trators, shall  attempt  to  sell  the  same,  or  any  part  thereof,  without  notice  to 
the  said  mortgagee,  or  his  executors,  administrators,  or  assigns,  and  without 
his  or  their  assent  to  such  sale  in  writing  expressed,  or  shall  remove  the 
same,  or  any  part  thereof,  from  the  place  in  which  they  now  are,  without 
such  notice  and  assent,  then  it  shall  be  lawful  for  the  said  mortgagee,  or  his 
executors,  administrators,  or  assigns,  to  take  immediate  possession  of  the 
whole  of  said  granted  property,  to  his  and  their  own  use. 

In  Testimony  Wliereof,   I   have  hereunto  set  my  hand  and  seal  this 
day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and 

{Signature^    {Seal.) 
Exectiied  and  Delivered  in  the  Preseitce  of 


FORMS  OF  MORTGAGES  OF  PERSONAL  PROPERTY,     65  I 

(242.) 
A  Mortgage  of  Personal  Property,  with  a  Power  of  Sale. 

Know  all  Men  by  these  Presents,  That  I,  {natiie  of  mortgagor)  of  the 
town  {or  city)  of  in  the  County  of  and  State  (f 

,  in  consideration  of  dollars,  to  me  paid  by  {name 

of  mortgagee)  of  the  town  {or  city)  of  in  the  County  of 

and  State  of  the  receipt  whereof  is  hereby  acknowledged,  do 

hereby  grant,  bargain,  and  sell  unto  the  said  {name  of  mortgagee)  and  his 
assigns,  forever,  the  following  goods  and  chattels,  to  wit  {list  or  schedule,  as 
tnFonn  240). 

To  Have  and  to  Hold,  All  and  singular  the  said  goods  and  chattels  unto 
the  mortgagee  herein,  and  his  assigns,  to  their  sole  use  and  behoof  forever. 
And  the  mortgagor  herein,  for  himself  and  for  his  heirs,  executors,  and 
administrators,  does  hereby  covenant  to  and  with  the  said  mortgagee  and 
his  assigns,  that  said  mortgagor  is  lawfully  possessed  of  the  said  goods  and 
chattels,  as  of  his  own  property  ;'  that  the  same  are  free  from  all  incumbrances, 
and  that  he  will  warrant  and  defend  the  same  to  him  the  said  mortgagee  and 
his  assigns,  against  the  lawful  claims  and  demands  of  all  persons. 

Provided,  Nevertheless,  that  if  the  said  mortgagor  shall  pay  to  the  mort- 
gagee, on  the  day  of  in  the  year  the 
sum  of  dollars,  then  this  mortgage  is  to  be  void,  otherwise  to 
remain  in  full  force  and  effect. 

And  Provided  Further,  That  until  default  be  made  by  the  said  mort- 
gagor in  the  performance  of  the  condition  aforesaid,  it  shall  and  may  be  law- 
ful for  him  to  retain  the  possession  of  the  said  goods  and  chattels,  and  to  use 
and  enjoy  the  same  ;  but  if  the  same  or  any  part  thereof  shall  be  attached  or 
claimed  by  any  other  person  or  persons  at  any  time  before  payment,  or  the 
said  mortgagor,  or  any  person  or  persons  whatever,  upon  any  pretence,  shall 
attempt  to  carry  off,  conceal,  make  way  with,  sell,  or  in  any  manner  dispose 
of  the  same  or  any  part  thereof,  without  the  authority  and  permission  of  the 
said  mortgagee  or  his  executors,  administrators,  or  assigns,  in  writing 
expressed,  then  it  shall  and  maybe  lawful  for  the  said  mortgagee,  with  or  with- 
out assistance,  or  his  agent  or  attorney,  or  his  executors,  administrators,  or 
assigns,  to  take  possession  of  said  goods  and  chattels,  by  entering:  upon  any 
premises  wherever  the  same  may  be,  whether  in  this  county  or  State,  or  else- 
where, to  and  for  the  use  of  said  mortgagee  or  his  assigns.  And  if  the  moneys 
hereby  secured,  or  the  matters  to  be  done  or  performed,  as  above  specified, 
are  not  duly  paid,  done  or  performed  at  the  time  and  according  to  the  condi- 
tions above  set  forth,  then  the  said  mortgagee,  or  his  attorney  or  agent,  or 
his  executors,  administrators,  or  assigns,  may  by  virtue  hereof,  and  without 
any  suit  or  process,  immediately  enter  and  take  possession  of  said  goods  and 
chattels,  and  sell  and  dispose  of  the  same  at  public  or  private  sale,  and  after 
satisfying  the  amount  due,  and  all  expenses,  the  surplus,  if  any  remain,  shall 
be  paid  over  to  said  mortgagor  or  his  assigns.     The  exhibition  of  this  mort- 


652  MORTGAGES  OF  PERSONAL  PROPERTY. 

gage  shall  be  sufficient  proof  that  any  person  claiming  to  act  for  the  mort- 
gagee is  duly  made,  constituted,  and  appointed  agent  and  attorney  to  do  what- 
ever is  above  authorized. 

In  "Witness  Wnereof,  The  said  mortgagor  has  hereunto  set  his  hand 
and  seal  this  day  of  in  the  year  of  our  Lord  one  thou- 

sand eijj,ht  hundred  and 

{Signature  of  mortgagor^     {Seal.') 

Signed,  Sealed,  and  Delivered  in  the  presence  of 

State  of  ■) 

>  ss. 
County.  ) 

This  mortgage  was  acknowledged  before  me,  by  {the  mort- 

gagor), this  day  of  A.D.  18 

(243.) 

Mortgage  of  Personal  Property,  with  Power  of  Sale- 
another  Form. 

Know  all  lien  by  these  Presents,  That  I  {tia7ne  and  residefice  of  mort- 
gago?-)  in  consideration  of  the  sum  of  to  me  paid  by  {name  and 

residence  of  mortgagee)  the  receipt  whereof  is  hereby  acknowledged,  have 
granted,  bargained,  and  sold,  and  by  these  presents  do  grant,  bargain,  and 
sell  unto  the  said  {name  of  jnortgagee)  the  following  named  and  described 
articles  of  personal  property  ;  that  is  to  say  {here  follows  the  list  or  schedule 
and  description  of  the  articles  mortgaged,  as  in  Form  240). 

To  Have  and  to  Hold,  All  and  singular,  the  said  goods  and  chattels, 
unto  the  said  {name  of  mortgagee)  and  his  executors,  administrators,  and 
assigns,  to  his  and  their  sole  use  forever.  And  I,  the  said  mortgagor,  for 
myself  and  my  executors  and  administrators,  do  covenant  to  and  with  the 
said  mortgagee  and  his  executors,  administrators,  and  assigns,  that  I  am 
lawfully  possessed  of  the  said  goods  and  chattels,  as  of  my  own  property : 
that  the  same  are  free  from  all  incumbrances  ;  and  that  I  will,  and  m,y  exec- 
utors and  administrators  shall,  warrant  and  defend  the  same  to  the  said 
mortgagee  and  his  executors,  administrators,  and  assigns,  against  the  lawful 
claims  and  demands  of  all  persons. 

Provided  Nevertheless,  That  if  the  said  mortgagor,  or  his  executors  of 
administrators,  shall  well  and  truly  pay  unto  the  said  mortgagee,  or  his  exec- 
utors, administrators,  or  assigns,  the  sum  of  then  this  deed,  as 
also  a  certain  promissory  note  bearing  even  date  herewith,  signed  by  the 
said  mortgagor,  whereby  he  promises  to  pay  the  said  mortgagee  the  said  sum 
and  interest  at  the  time  aforesaid,  shall  both  be  void,  and  otherwise  they 
shall  remain  in  full  force  and  virtue. 

And  Provided  Also,  That  until  def  lult  by  the  said  mortgagor  or  his 
executors  and  administrators,  in  the  performince  of  the  condition  aforesaid, 
or  of  some  part  thereof,  it  shall  and  may  be  lawful  for  him  or  them  to  keep 


A  BSTRA  CT  OF  CHA  TTEL  MOR TGA  GES.  653 

possession  of  tlie  said  granted  property,  and  to  use  and  enjoy  the  same  ;  but 
in  case  of  such  default,  or  if  the  same  or  any  part  thereof  shall  be  attached 
at  any  time  before  payment  as  aforesaid,  by  any  other  creditor  or  creditors 
of  tiie  said  mortgagor,  or  if  tlie  said  mortgagor,  his  executors  or  administra- 
tors, shall  attempt  to  sell  the  same  or  any  part  thereof  without  notice  to  the 
said  mortgagee  or  his  executors,  administrators,  or  assigns,  and  without  his 
or  their  assent  to  such  sale  in  writing  expressed  ;  or  sha.l  remove  the  same, 
or  any  part  thereof,  from  the  place  where  they  now  are,  without  such  notice 
and  assent,  then  it  shall  be  lawful  for  the  said  mortgagee,  his  executors, 
administrators,  or  assigns,  to  take  immediate  possession  of  the  whole  of  said 
granted  property  to  his  or  their  own  use,  and  to  sell  and  dispose  of  the  whole, 
or  of  so  much  of  said  granted  property  at  public  auction,  as  shall  produce  a 
sum  of  money  sufficient  to  pay  and  discharge  the  above-mentioned  debt  or 
liability,  with  interest,  and  all  costs  and  charges  of  keeping  and  selling  the 
s  ime,  and  all  just  and  equitable  liens  then  existing  thereon,  without  further 
notice  or  demand,  except  giving  day's  notice  of  the  time  and  place  of 

said  sale  to  said  mortgagor  or  his  legal  representatives  ;  and  after  the  said 
debt  or  liability,  with  interest,  costs,  charges,  and  liens,  shall  be  so  discharged 
and  satisfied,  the  surplus  of  the  money  arising  from  said  sale  and  the  resi* 
due  of  said  granted  property,  shall  be  paid  and  restored  to  said  mortgagoi 
or  his  legal  representatives,  discharged  from  all  claim  under  this  mortgage. 

In  Testimony  "Whereof,  I  the  said  {najne  of  mortgagor') 

have  hereunto  set  my  hand  and  seal  this  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 

{Signature^     (Seal.) 

Executed  and  Delivered  in  Presence  of 

ABSTRACT  OF  THE  LAWS  OF  THE  STATES  AND 
TERRITORIES   CONCERNING  CHAT- 
TEL MORTGAGES. 

ALABAMA. —  Personal  property  may  be  mortgaged,  but  to  be  good  against 
creditors  and  purchasers  without  notice,  the  mortgage  must  be  recorded  in  the 
county  where  the  grantor  lives,  and  also  in  the  county  where  the  property  is  at 
the  time  of  conveyance.  If  removed  to  another  county,  the  mortgage  must  be  re- 
corded there  within  six  months.  Mortgages  of  personal  property  usually,  contain 
powers  of  sale,  and  are  foreclosed  according  to  the  provisions  of  the  mortgage. 

ARIZONA. — All  personal  property  may  be  mortgaged.  The  mortgage  must 
set  forth  the  residences  of  the  mortgagor  and  mortgagee,  their  profession,  trade,  or 
occupation,  the  sum  to  be  secured,  the  rate  of  interest  to  be  paid,  and  when  and 
where  payable,  and  both  parties  must  make  affidavit  that  the  mortgage  is  Iwna  fide, 
and  not  made  to  defraud  or  delay  creditors.  The  mortgage,  with  the  affidavit  an- 
nexed, must  be  recorded  in  the  county  where  the  mortgagor  lives,  and  also  where  the 
property  is  situated.  Foreclosure  is  by  action,  when  the  property  will  be  sold  under 
the  direction  of  the  court. 


654  MORTGAGES   OF  PERSONAL   PROPERTY. 

ARKANSAS. — Chattel  mortgages  must  be  acknowledged  before  some  person 
authorized  by  law  to  take  acknowledgments,  and  filed  or  recorded  in  the  county 
where  the  mortgagor  resides,  and  are  liens  on  the  property  mortgaged  only  from  such 
time.  If  filed  without  being  recorded,  the  lien  expires  in  one  year,  unless  within 
thirty  days  before  the  expiration  of  the  year  the  mortgagor  files  an  affidavit  showing 
his  interest  in  the  mortgaged  property  and  the  amount  due.  After  condition  broken, 
suit  may  be  brought  on  the  mortgage,  and  judgment  rendered  for  the  sale  of  the 
property  and  the  recovery  of  the  debt  against  the  defendant  personally.  If  the  prop- 
erty does  not  bring  two-thirds  of  the  appraised  value,  the  sale  may  be  postponed  for 
sixty  days,  unless  the  right  of  appraisal  is  expressly  waived  in  the  mortgage. 

CALIFORNIA. — The  following  property  may  be  mortgaged  :  Locomotives 
and  rolling  stock  of  a  railroad  company,  steamboat  machinery,  and  machinery  used 
by  machinists,  foundrymen,  and  mechanics,  vessels  of  more  than  five  tons  burden, 
pianos  and  organs,  steam  engines  and  boilers,  mining  machinery,  printing  presses 
and  materials,  professional  libraries,  instruments  of  surgeons,  physicians,  surveyors, 
and  dentists,  and  the  instruments,  negatives,  and  fixtures  of  photograph  galleries, 
upholstery  and  furniture  used  in  hotels  and  boarding  houses,  for  the  purchase-money 
of  the  articles  mortgaged,  growing  crops,  wine,  fruit  brandy,  syrup,  or  sugar  and  ap- 
paratus used  in  the  manufacture  of  the  same.  The  mortgage  is  void  against  credit- 
ors, unless  accompanied  by  an  affidavit  of  all  the  parties  that  it  is  made  in  good  faith, 
and  without  any  design  to  defraud  creditors,  and  unless  it  is  acknowledged  and  re- 
corded in  the  same  manner  as  a  deed  of  real  property,  in  the  office  of  the  recorder  for 
the  county  where  the  mortgagor  resides,  and  also  where  the  property  is  situated. 
Chattel  mortgages  may  be  foreclosed,  as  in  the  case  of  pledges,  by  sale  after  demand; 
the  mortgagee  must  give  notice  of  the  time  and  place  of  sale,  which  must  be  by  pub- 
lic auction,  and,  after  deducting  the  amount  due  on  the  mortgage,  he  must  return 
the  balance  to  the  mortgagor.  Or  he  may  foreclose  by  action,  and  the  court  by  its 
judgment  may  direct  a  sale  of  the  property,  or  of  so  much  as  may  be  necessary,  and 
the  application  of  the  proceeds  of  the  sale  to  the  payment  of  the  amount  due,  and  all 
costs  and  expenses  ;  and  any  surplus  is  to  be  returned  to  the  court ;  and  the  mort- 
gagee may  be  authorized  to  purchase  at  the  sale. 

COLORADO. — The  property  must  be  delivered  to  the  mortgagee,  or  the  mort- 
gage acknowledged  and  recorded  in  the  county  where  the  property,  or  a  greater  part 
is,  and  it  is  then  valid  for  two  years  if  the  mortgage  debt  does  not  exceed  $2,500,  for 
five  years  if  the  debt  does  not  exceed  $20,000,  and  ten  years  for  larger  sums.  If  the 
amount  exceeds  $2,500  mortgagee  must  annually  file  a  sworn  statement  that  the 
mortgage  was  given  in  good  faith  to  secure  the  sum  mentioned  therein,  and  the 
amount  due.  Mortgage  for  less  than  $300  for  not  exceeding  six  months  may  be  filed 
without  being  recorded.  When  chattel  mortgages  are  in  form  of  trust  deeds,  they 
contain  a  power  of  sale  by  the  trustee  at  public  auction,  on  giving  certain  notice. 
Otherwise  there  is  no  statute  provision  in  regard  to  foreclosure.  After  default  the 
mortgagee  must  not  delay  taking  possession  of  the  property,  or  his  lien  may  be  lost. 

CONNECTICUT. — Machinery,  engines,  or  implements  situated  or  used  in  any 
manufacturing  or  mechanical  establishment,  presses,  types,  etc.,  pertaining  to  a  print- 
ing establishment,  household  furniture  used  in  housekeeping,  hay  in  a  building,  to- 
bacco in  the  leaf,  pianos,  organs,  and  melodeons,  and  any  instrument  used  by  a  band 
or  orchestra,  and  brick,  burned  or  unburned,  in  any  kiln  or  brickyard  may  be  mort- 


ABSTRACT  OF  CHATTEL   MORTGAGES.  655 

gaged.     The  mortgage  must  be  executed,  acknowledged,  and  recorded  in  all  respects 
as  a  deed  of  land,  and,  on  breach  of  condition,  may  be  foreclosed  by  order  of  court. 

DELAWARE. — Chattel  mortgages  must  be  acknowledged  and  recorded  with- 
in ten  days,  and  the  lien  continues  for  three  years.  Mortgages  are  foreclosed  by  in- 
tervention of  court,  and  there  is  no  redemption  of  the  property  sold. 

DISTRICT  OF  COLUMBIA.— Security  on  chattels  is  usually  taken  by  deeds 
of  trust,  which  must  be  recorded  within  twenty  days,  and  which  usually  confer  on  the 
trustee  power  to  sell  in  case  of  default  after  giving  notice  by  advertisement. 

FLORIDA. — The  property  mortgaged  must  be  delivered  to  the  mortgagee 
within  sixty  days,  or  the  deed  must  be  executed  in  the  same  manner  as  deeds  of  real 
property  (see  Deeds,  etc.),  and  recorded  within  ninety  in  the  office  of  records  for  the 
county  where  the  property  is  at  the  time  of  the  execution  of  the  mortgage.  The 
mortgage  is  foreclosed  by  petition  to  the  circuit  court  for  the  county  where  the  prop- 
erty is,  two  months  before  the  term  of  the  court,  at  which  judgment  may  be  rendered, 
except  mortgages  for  less  than  one  hundred  dollars,  which  may  be  foreclosed  in  a 
justice's  court. 

GEORGIA. — The  mortgage  must  clearly  indicate  the  creation  of  the  lien,  spec- 
ify the  debt  and  the  property  to  be  secured.  It  must  be  executed  in  presence  of,  and 
attested  or  proved  by  or  before,  a  notary  public  or  a  judge  or  clerk  of  court,  and  re- 
corded within  thirty  days  in  the  county  where  the  mortgagor  resides,  and  in  the  county 
where  the  property  is ;  but  record  at  any  time  is  due  notice.  In  order  to  foreclose, 
the  mortgagee  must  go  before  some  officer  of  the  State  authorized  to  administer  oaths 
(or  a  commissioner  for  Georgia,  if  he  be  a  non-resident),  and  make  an  affidavit  of  the 
amount  due,  and  that  the  mortgagor,  if  a  resident  of  the  State,  resides  in  the  county 
where  the  foreclosure  is  made,  which  affidavit  shall  be  affixed  to  the  mortgage,  and 
the  mortgage  filed  in  the  office  of  the  clerk  of  the  superior  court  for  the  county  where 
the  mortgagor  resides  ;  and  the  clerk  shall  thereupon  issue  an  execution  directing  the 
sale  of  the  property.  The  sheriff  shall  le\^  on  the  property,  and  after  advertising 
weekly  for  four  weeks,  may  sell  the  same.  When  the  debt  is  not  over  one  hundred 
dollars,  the  proceedings  may  be  before  a  justice  of  the  peace,  who  may  issue  execu- 
tion after  notice  to  the  mortgagor,  and  the  constable  may  sell  after  advertising  sale 
in  three  or  more  public  places  in  his  district. 

IDAHO. — Mortgages  of  personal  property  must  state  the  residence  of  the  mort- 
gagor and  mortgagee,  the  sum  to  be  secured,  rate  of  interest,  and  when  and  where 
payable,  and  the  mortgagor  must  acknowledge  the  instrument  and  make  affidavit  that 
the  mortgage  is  bona  fide ^  and  made  without  design  to  defraud  or  delay  creditors. 
The  mortgage  and  affidavit  attached  must  be  recorded  in  the  county  where  the  mort- 
gagor resides,  and  also  in  that  in  which  the  property  is  situated.  Foreclosure  may 
be  by  action,  or  the  mortgaged  property  may  be  sold  at  sheriff's  sale. 

ILLINOIS. — Mortgages  of  personal  property  are  not  valid  unless  the  property 
is  delivered  to  the  mortgagee,  or  unless  the  instrument  is  acknowledged  before  a  just- 
ice of  the  peace  in  the  district  where  the  mortgagor  resides,  or,  if  he  be  a  non-resi- 
dent, before  any  officer  authorized  to  take  acknowledgments  of  deeds,  and  recorded 
in  the  county  where  he  resides,  or  if  he  is  a  non-resident,  in  the  county  where  the 
property  is.  The  lien  expires  in  two  years  from  the  date  of  record  unless  within  thirty 
days  before  the  expiration  of  the  two  years  the  parties  file  with  the  recorder  and  with 


656  MORTGAGES   OF  PERSONAL  PROPERTY. 

the  justice  or  his  successor  an  affidavit  setting  forth  the  interest  of  the  mortgagee  in 
the  property,  the  amount  unpaid  and  the  time  due  by  which  the  lien  is  extended  for 
two  years  longer.  After  default,  the  mortgage  must  be  at  once  foreclosed,  or  the  lien 
will  be  lost.  Chattel  mortgages  usually  contain  a  power  of  sale  and  may  be  fore- 
closed in  accordance  therewith,  except  mortgages  on  necessary  household  goods, 
wearing  apparel  or  mechanics'  tools,  which  can  be  foreclosed  only  in  a  court  of  record. 
A  mortgage  by  a  married  man  or  woman  on  household  goods  is  not  valid  unless 
joined  in  by  wife  or  husband. 

INDIANA. — If  the  goods  are  not  delivered,  the  mortgage  must  be  acknowl- 
edged in  the  same  manner  as  deeds  of  real  property,  and  recorded  within  ten  days  in 
the  county  where  the  mortgagor  lives.  The  mortgage  is  deemed  of  record  from  the 
time  it  is  left  with  the  recording  officer.  There  is  no  strict  foreclosure.  The  mort- 
gagee is  entitled  to  possession  of  the  property  on  breach  of  the  condition,  and  may 
bring  an  action  to  recover  the  same,  but  the  equity  of  redemption  of  the  mortgagor 
can  be  extinguished  only  by  public  sale  after  proper  notice,  or  by  a  judicial  sale  on 
foreclosure  proceedings. 

IOWA. — The  mortgage  is  not  valid  unless  it  is  in  writing,  signed,  acknowl- 
edged, and  recorded  in  the  county  where  the  holder  of  the  property  resides.  Chattel 
mortgages  for  the  payment  of  money  only,  and  in  which  the  time  of  payment  is  fixed, 
may  be  foreclosed  by  notice  and  sale.  The  notice  must  contain  a  full  description  of 
the  property,  and  the  time  and  place  of  sale,  with  the  terms  of  the  same,  such  notice 
to  be  served  on  the  mortgagor  and  purchasers  from  him,  and  on  all  persons  having 
recorded  liens  subsequent  to  the  mortgage,  and  afterwards  published  in  the  same 
manner  as  in  case  of  sale  of  property  on  execution,  and  the  purchaser  takes  all  the 
title  and  interest  in  the  mortgaged  property. 

KANSAS. — Unless  the  property  be  delivered  to  the  mortgagee,  the  mortgage, 
or  a  copy  of  it,  must  be  deposited  in  the  office  of  the  register  of  deeds  for  the  county 
where  the  mortgagor  resides,  or  where  the  property  is  if  he  is  a  non-resident,  and,  in 
order  to  preserve  the  lien,  an  affidavit  must  be  filed  within  thirty  days  of  the  expira- 
tion of  each  year  by  the  mortgagee,  stating  that  his  interest  is  a  continuing  one,  and 
the  amount  then  due.  After  condition  broken,  the  mortgagee  or  his  assignee  may 
proceed  to  sell  the  mortgaged  property,  or  so  much  thereof  as  is  neccessary  to  satisfy 
the  mortgage,  having  first  given  notice  of  the  time  and  place  of  the  sale  by  written 
or  printed  handbills  posted  in  at  least  four  different  places  in  the  township  or  city  in 
which  the  property  is  to  be  sold,  at  least  ten  days  before  the  sale.  Mortgage  of  ex- 
empt property  must  be  signed  by  husband  and  wife  jointly.  Promissory  notes  and 
other  written  instruments  evidencing  conditional  sale  of  personal  property  retaining 
title  in  vendor  until  price  is  paid  in  full  are  subject  to  the  same  provisions  as  to  record, 
etc.,  as  chattel  mortgages. 

KENTUCKY. — Chattel  mortgages  must  be  acknowledged,  and  recorded  in 
the  office  of  the  clerk  of  the  court  for  the  county  where  the  property  is.  They  may 
be  foreclosed  by  bill  in  equity.  If  the  mortgagee  takes  possession  for  foreclosure, 
the  mortgagor  has  five  years  to  redeem. 

LOUISIANA. — Chattel  mortgages  are  unknown. 

MAINE. — Mortgages  of  personal  property  are  not  valid  unless  the  property  is 
delivered,  or  the  mortgage  is  recorded  by  the  clerk  of  the  town  where  the  mortgagor 


ABSTRACT  OF  CHATTEL  MORTGAGES.  ^57 

resides,  or  if  he  is  a  non-resident,  in  the  town  where  the  property-  is  when  the  mort- 
gage is  made.  After  condition  broken,  the  mortgagee  or  his  assignee  may  give  the 
mortgagor  written  notice  of  his  intention  to  foreclose,  by  leaving  a  copy  thereof  with 
the  mortgagor,  or,  if  he  is  absent  from  the  State,  by  leaving  such  copy  at  his  last  and 
usual  place  of  abode,  or  by  publishing  a  copy  once  a  week,  for  three  successive  weeks, 
in  one  of  the  principal  papers  of  the  town  where  the  mortgage  is  recorded.  The 
notice,  with  an  affidavit  of  service,  or  copv  of  the  publication,  must  be  recorded 
where  the  mortgage  is  recorded,  and  all  right  of  redemption  is  forfeited  within  sixty 
days  after  such  notice  is  recorded.  If  the  mortgagee  is  a  non-resident,  he  must  re- 
cord with  such  notice  his  appointment  of  an  agent  in  the  same  town  to  receive  satis- 
faction of  the  mortgage,  to  whom  tender  or  payment  may  be  made.  Notes  given  for 
the  purchase  of  property,  with  the  proviso  that  it  shall  remain  the  property  of  the 
payee  until  paid,  are  subject  to  the  same  provisions  as  to  record  and  foreclosure  as 
chattel  mortgages. 

MARYLAND. — Mortgages  and  bills  of  sale  must  contain  the  names  of  the 
parties,  the  consideration,  and  a  description  of  the  property  mortgaged,  and  an  affi' 
davit  by  the  mortgagor  that  the  consideration  named  is  true  and  bona  fide  3&s&tiox\h\ 
they  must  be  signed,  sealed,  dated,  and  acknowledged,  and  recorded  in  the  county  or 
city  where  the  vendor  resides  within  twenty  days  after  the  date  of  the  mortgage. 
The  mortgage  may  be  foreclosed  by  sale  under  the  supervision  of  a  court  of  equity. 

MASSACHUSETTS.— Chattel  mortgages  need  not  be  under  seal  nor  ac- 
knowledged. They  must  be  recorded  within  fifteen  days  after  date  on  the  records 
of  the  city  or  town  where  the  mortgagor  resides,  and  also  in  the  city  or  town  in 
which  he  principally  transacts  his  business.  If  a  non-resident,  the  mortgage  must 
be  recorded  in  the  city  or  town  where  the  property  is.  If  it  requires  to  be  twice  re- 
corded, the  second  record  will  be  good  if  made  within  ten  days  after  the  first.  A 
record  not  made  within  the  time  specified  is  of  no  effect.  The  mortgagee  or  his 
assigns,  after  condition  broken,  may  give  to  the  mortgagor  written  notice  of  his  in- 
tention to  foreclose  the  same,  which  notice  shall  be  served  by  leaving  a  copy  with  the 
mortgagor,  or  person  in  possession  'of  the  property  claiming  the  same,  or  by  publishing 
it  at  least  once  a  week,  for  three  successive  weeks,  in  one  of  the  principal  newspapers 
published  in  the  town  or  city  where  the  mortgage  is  properly  recorded,  or  where  the 
property  is  situated.  The  notice,  with  an  affidavit  of  service,  shall  be  recorded 
wherever  the  mortgage  is  recorded.  Unless  the  mortgagor  tenders  payment  of  the 
amount  due  within  sixty  days  after  such  record  the  right  to  redeem  will  be  foreclosed. 
If  the  mortgage  contain  a  power  of  sale,  the  property  may  be  sold  in  accordance  with 
its  terms. 

MICHIGAN. — If  not  accompanied  by  delivery  of  the  property  mortgaged,  the 
mortgage  or  a  copy  thereof  must  be  recorded  in  the  office  of  the  clerk  of  the  city  or 
town  where  the  mortgagor  resides,  or,  if  he  be  a  non-resident,  where  the  property  is, 
and,  within  thirty  days  before  the  expiration  of  each  year,  the  mortgagee  must  file 
an  affidavit  setting  forth  his  interest  in  the  property.  There  are  no  statute  provisions 
in  regard  to  foreclosure.  Each  mortgage  should  contain  provisions  as  to  its  own 
foreclosure,  which  will  be  carried  into  effect.  In  the  absence  of  such  provisions, 
foreclosure  will  be  by  proceedings  in  chancery.  A  mortgage  may  be  made  to  cover 
goods  purchased  to  replace  the  stock  originally  mortgaged. 
42 


658  MORTGAGES   OF  PERSOXAL  PROPERTY. 

MINNESOTA. — The  mortgaj^e  must  be  made  in  good  faith,  and  without  in- 
tent to  defraud  creditors  ;  it  must  be  acknowledged,  and  it,  or  a  copy,  filed  in  the 
city  or  town  where  the  property  is,  and  also  where  the  mortgagor  resides.  The 
mortgage  ceases  to  be  valid  against  third  persons  at  the  expiration  of  two  years  after 
becoming  du6,  unless  an  affidavit  be  previously  filed  and  annexed  to  the  copy  on  file 
setting  forth  the  mortgagee's  interest  in  the  property  under  the  mortgage,  endorsed 
with  the  date  of  filing.  Such  an  affidavit  must  also  be  filed  annually  thereafter,  in 
order  to  preserve  the  lien.  The  mortgagee  or  his  assigns,  after  conditon  broken, 
may  give  written  notice  of  his  intention  to  foreclose,  which  may  be  served  personally, 
or  by  publication  once  a  week,  for  three  successive  weeks,  in  a  newspaper  printed 
and  published  in  the  county  where  the  mortgage  is  recorded.  The  notice,  with 
affidavit  of  service,  shall  be  filed  where  the  mortgage  is  filed,  and  foreclosure  is  com- 
plete if  no  redemption  is  made  within  sixty  days.  When  the  mortgage  contains  a 
power  of  sale,  it  may  be  foreclosed  in  accordance  with  its  terms,  provided  the  sale 
be  a  public  one,  and  ten  days'  notice  in  writing  be  served  upon  the  mortgagor  or 
person  in  the  possession  of  the  property,  if  found  within  the  town  where  the  mort- 
gage is  filed.  If  not  so  found,  the  notice  may  be  posted  in  three  of  the  most 
public  places  in  the  town  where  the  mortgage  is  filed  or  that  where  the  property  is 
taken  under  the  mortgage. 

MISSISSIPPI. — Mortgages  of  personal  property  must  be  acknowledged,  and 
recorded  in  the  office  of  the  clerk  of  the  court  of  chancery  for  the  county  where  the 
property  is,  and  are  notice  to  third  parties  from  the  date  of  record.  The  mortgage 
should  contain  provisions  as  to  foreclosure,  sale,  etc.,  and  may  be  foreclosed  in  ac- 
cordance with  the  terms  expressed  in  the  same. 

MISSOURI. — Mortgages  are  usually  in  form  of  deed  of  trust  with  power  of 
sale.  Unless  the  property  is  delivered,  the  mortgage  must  be  acknowledged  or  proved 
and  recorded  in  the  county  where  the  mortgagor  resides.  Mortgages  with  power 
of  sale  may  be  foreclosed  in  accordance  with  such  power,  and  such  sale  bars  the 
right  of  redemption.  All  mortgages  in  which  the  debt,  exclusive  of  interest,  does  not 
exceed  one  hundred  dollars,  may  be  foreclosed  by -sale  of  the  property  by  the  mort- 
gagee, he  first  giving  sixty  days'  notice  after  default  that  the  property  will  be  sold, 
and  thirty  days'  notice  of  the  time  and  place  of  sale.  All  other  mortgages  may  be 
foreclosed  by  petition  to  the  circuit  court,  and  the  court  may  give  judgment  and  de- 
cree a  sale  of  the  incumbered  property. 

MONTANA. — A  chattel  mortgage  must  be  accompanied  by  an  affidavit  of  the 
parties  that  it  is  made  in  good  faith  to  secure  the  amount  named  therein,  and  without 
design  to  hinder  or  delay  creditors,  and  must  be  acknowledged  and  filed  in  the  office 
of  the  recorder  of  deeds  of  the  county  where  the  mortgagor  resides,  or  if  he  be  a  non- 
resident, where  the  property  is  situated,  and  is  good  for  one  year  from  the  date  of  fil- 
ing but  may  be  renewed  for  a  period  not  exceeding  one  year  by  filing  an  affidavit  at 
or  before  maturity  of  debt  showing  names  of  mortgagor  and  mortgagee,  date  of  filing, 
amount  of  debt  secured  and  amount  then  due,  and  that  mortgage  was  not  made  or 
renewed  to  hinder,  delay,  or  defraud  creditors  or  subsequent  mortgagees.  Foreclos- 
ure is  by  suit,  but  the  mortgage  may  contain  a  clause  authorizing  the  sheriff  to  sell  the 
propery  on  default,  in  which  case  he  may  sell  in  the  manner  specified  in  the  mortgage 
without  further  legal  proceedings. 


ABSTRACT  OF  CHATTEL   MORTGAGES.  659 

NEBRASKA. — The  property  must  be  delivered,  or  else  tl:e  mortgage,  or  a 
copy,  filed  in  the  office  of  the  county  clerk  of  the  county  where  the  mortgagor  resides, 
or,  if  he  be  a  non-resident,  where  the  property  is  situated,  and  ceases  to  be  valid  as  against 
creditors,  etc.,  after  five  years  from  date  of  filing.  A  mortgage  with  power  of  sale  may 
be  foreclosed  after  condition  broken  by  giving  notice  of  the  time  and  place  of  the  sale 
at  least  twenty  days  before  such  sale.  The  notice  shall  specify  the  mortgage,  parties, 
the  amount  due,  and  description  of  the  property,  and  time  and  place  of  sale,  and  shall 
be  published  in  some  newspaper  in  the  county  where  the  property  is,  or,  if  no  news- 
paper is  published  in  said  county,  then  by  posting  up  notice  in  at  least  five  public 
places  in  the  county,  two  of  which  shall  be  in  precinct  where  sale  is  to  take  place. 
The  sale  shall  be  by  public  auction.  If  the  mortgage  contains  no  power  of  sale,  it 
may  be  foreclosed  by  action. 

NEVADA. — Chattel  mortgages  are  allowed  for  sums  not  less  than  one  hundred 
dollars.  Unless  property  is  delivered  to  mortgagee,  the  mortgage  must  be  recorded 
in  the  office  of  the  recorder  of  county  where  the  mortgagor  resides  and  also  where 
property  is  situated  and  be  accompanied  by  affidavit  of  both  parties  that  mortgage 
is  made  in  good  faith  for  debt  actually  owed  by  mortgagor,  the  amount  and  charac- 
ter of  debt,  and  that  same  is  not  made  to  hinder,  delay,  or  defraud  creditors.  Lien 
expires  in  one  year  unless  renewed  by  filing  affidavit  of  amount  still  due.  Foreclos- 
ure is  by  action  and  decree  for  sale  of  property. 

NEW  HAMPSHIRE. — Possession  must  be  delivered  to  and  retained  by  the 
mortgagee,  or  the  mortgage  recorded  with  the  clerk  of  the  town  where  the  mortga- 
gor resides,  or  if  the  mortgagor  resides  out  of  the  State,  in  the  town  where  the  prop- 
erty is  situated.  Both  parties  must  make  affidavit  that  the  mortgage  is  made  in  good 
faith,  and  to  secure  an  existing  debt.  The  mortgagee,  at  any  time  after  thirty  days 
from  the  time  the  condition  is  broken,  may  sell  the  mortgaged  property  at  auction, 
notice  of  the  time,  place,  and  purposes  of  the  sale  being  posted  at  two  or  more  public 
places  in  the  town  in  which  the  sale  is  to  be,  at  least  four  days  prior  thereto.  The 
mortgagee  shall  notify  the  mortgagor  at  least  four  days  prior  to  the  sale.  He  may 
purchase  at  such  sale,  and  the  mortgagor  may  redeem  at  any  time  before  the  sale. 

NEW  JERSEY. — Unless  accompanied  by  delivery  of  the  property,  the  mort- 
gage must  be  acknowledged  and  it  or  a  copy  thereof,  together  with  an  affidavit  of 
the  holder  of  the  mortgage,  stating  the  consideration,  and,  as  nearly  as  possible,  the 
amount  due  and  to  become  due  thereon,  must  be  filed  in  the  clerk's  office  for  the 
county  where  the  mortgagor  resides,  or,  if  he  is  a  non-resident,  in  the  county  where 
the  property  is.  If  there  is  a  registry  of  deeds  in  the  county,  the  mortgage  must  be 
filed  in  such  registry.  The  mortgage  vests  the  right  of  possession  of  the  mortgaged 
property  in  the  mortgagee  so  far  as  to  enable  him  to  prevent  its  removal  from  the 
county,  and  to  recover  the  same  if  removed.  Foreclosure  is  usually  enforced  by  sale 
conducted  in  the  same  manner  as  sales  of  personal  property  taken  under  execution. 
Foreclosure  may  also  be  made  by  suit  in  equity. 

NEW  MEXICO. — A  mortgage  of  personal  property  must  be  acknowledged 
and  recorded  in  the  office  of  the  recorder  of  the  county  where  the  property  is  situated; 
and  every  year  thereafter,  within  thirty  days  of  the  expiration  thereof  the  mortgagee 
must  file  with  the  mortgage  an  affidavit  showing  his  interest  in  the  mortgaged  prop- 
erty, and  the  amount  due  thereon.     After  condition  broken,  the  mortgagee  may  sell 


66o  MORTGAGES   OF  PERSONAL  PROPERTY. 

the  property,  or  so  much  thereof  as  may  be  necessary,  after  posting  notices  in   four 
public  places  in  the  township  where  tlie  sale  is  to  be  made,  ten  days  before  the  sale. 

NEW  yORK. — The  mortgage,  or  a  true  copy,  must  be  filed  in  the  office  of 
the  county  clerk,  registrar,  or  town  clerk,  as  the  case  may  be,  where  the  mortgagor 
resides,  or,  if  a  non-resident,  where  the  property  is  ;  and  every  year,  within  thirty  days 
before  the  expiration  of  the  same,  the  mortgagee  must  file  a  copy  of  the  mortgage, 
and  an  affidavit  showing  his  interest  in  the  property.  The  mortgage  need  not  be  un- 
der seal.  The  mortgagee  may  take  possession  of  the  property  after  condition  is 
broken,  and  sell  the  same  either  at  private  sale  or  by  public  auction.  Any  sale  fairly 
made  will  be  upheld  by  the  courts.  It  is  customary  to  give  three  days'  public  notice 
if  the  sale  is  by  auction,  and  the  mortgagor  may  redeem  at  any  time  before  sale,  but 
not  after.  If  the  mortgage  contain  terms  or  provisions  as  to  foreclosure,  sale,  etc., 
the  foreclosure  will  be  governed  by  them. 

NORTH  CAROLINA. — Mortgages  and  conditional  sales  are  not  valid  un- 
less recorded  in  the  county  where  the  mortgagor  resides,  or,  if  he  is  a  non-resident,  in 
the  county  wherfc  the  property  is.  On  breach  of  condition,  if  the  mortgage  contain 
a  power  of  sale,  the  mortgagee  may  proceed  to  sell  at  auction,  first  giving  twenty 
days'  notice  at  the  court-house  door  as  well  as  in  the  manner  prescribed  by  the  mort- 
gage itself  ;  or  the  foreclosure  may  be  made  by  suit  in  court.  If  household  furniture 
be  mortgaged  mortgagor's  wife  must  join. 

NORTH  DAKOTA. — Mortgage  must  be  in  writing  subscribed  by  the  mort- 
gagor in  the  presence  of  two  witnesses,  who  must  sign  as  such,  and  be  recorded  in 
the  office  of  the  register  of  deeds  of  the  county  in  which  the  property  is  situated  and 
is  good  for  three  years.  No  acknowledgment  is  necessary.  It  may  be  renewed  not 
less  than  ten  days  nor  more  than  thirty  days  before  the  expiration  of  three  years  from 
■  date  of  filing  by  filing  in  the  office  of  the  register  of  deeds  a  copy  of  the  mortgage 
with  a  statement  of  the  balance  then  due,  duly  subscribed  and  sworn  to  by  the  mort- 
gagor or  his  agent  or  attorney.  Foreclosure  may  be  by  action,  or  it  may  be  by  sale 
in  accordance  with  statute  which  provides  for  publication  in  a  newspaper  one  week 
before  sale,  for  sale  at  particular  places  on  Saturdays,  and  report  of  sale  to  be  made 
in  ten  days  and  filed  with  the  register  of  deeds. 

OHIO. — If  the  property  is  not  delivered,  the  mortgage  is  absolutely  void,  unless 
it  is  filed  in  the  office  of  the  clerk  of  the  township  where  the  mortgagor  resides,  or 
where  the  property  is,  if  he  is  a  non-resident,  or  if  the  mortgagor  resides  in  the  town- 
ship in  which  the  office  of  the  county  recorder  is  kept,  or  if  the  mortgagor  is  a  non- 
resident and  the  property  is  in  such  township,  mortgage  must  be  filed  with  county 
recorder.  The  mortgagee  must  file  under  oath  a  statement  of  his  claim  in  dollars 
and  cents,  and  that  it  is  unpaid  ;  and  a  copy  of  the  mortgage  and  affidavit  must  be 
filed  within  thirty  days  before  the  expiration  of  each  year  thereafter.  There  are  no 
provisions  in  regard  to  foreclosure  of  chattel  mortgages  as  distinguished  from  other 
mortgages.  Any  pro\'isions  or  terms  in  the  mortgage  would  be  carried  into  effect. 
The  mortgagor  is  entitled  to  possession  and  use  of  the  property. 

OKLAHOMA. — Mortgage  must  be  signed  by  mortgagor  in  presence  of  two 
witnesses,  and  it  or  a  true  copy  must  be  deposited  in  office  of  register  of  deeds  of 
county  where  mortgagor  lives,  or,  if  a  non-resident,  in  county  where  the  prop- 
erty is,  and  is  good  for  three  years  from  date  of  filing,  but  may  be  extended  by 


ABSTRACT  OF  CHATTEL   MORTGAGES.  66 1 

filing  within  thirty  days  before  the  expiration  of  the  three  years  a  copy  of  mortgage 
and  affidavit  of  amount  still  due.  Foreclosure  may  be  by  suit,  or,  if  the  mortgage 
contain  a  power  of  sale,  by  sale  in  accordance  therewith  after  ten  days'  notice  with- 
out aid  of  court. 

OREGON. — The  mortgage,  or  a  copy  thereof,  must  be  recorded  in  the  office  of 
the  county  clerk  of  the  county  in  which  the  property  is,  and  every  year,  within  thirty 
days  before  the  expiration  of  the  same,  a  copy  must  be  filed  and  a  statement  under 
oath  of  the  mortgagee's  interest.  After  condition  broken,  the  mortgagee  is  entitled 
to  possession,  and  he  may  recover  the  same  by  suit,  on  making  an  affidavit  of  all  the 
facts  and  the  value  of  the  property  ;  and  the  sheriff  will  hold  the  property  to  await 
the  disposition  of  the  suit.  The  mortgage  may  provide  how  it  shall  be  foreclosed, 
in  which  case  that  method,  and  no  other,  shall  be  followed.  In  the  absence  of  any 
other  provision,  foreclosure  is  by  action,  but  where  the  consideration  is  less  than  five 
hundred  dollars,  the  property  may  be  sold  by  a  sheriff  or  constable  on  the  written 
request  of  the  mortgagee. 

PENNSYLVANIA. — Leases  of  collieries,  manufactories,  and  other  premises, 
with  the  buildings  and  machinery,  also  iron  ore  mined  for  use  and  manufactured,  iron 
and  steel  may  be  mortgaged,  in  the  latter  case  for  sums  not  less  than  five  hundred 
dollars  provided  the  mortgage  is  recorded  in  the  same  manner  as  deeds  of  real  estate. 
With  these  exceptions,  no  mortgages  of  personal  property  are  authorized  by  statutes 
now  in  force.  Loans  on  personal  security  are  mere  pledges,  and  the  lender  must 
take  possession  of  the  property  pledged. 

RHODE  ISLAND. — Unless  the  property  is  delivered  to  and  retained  by  the 
mortgagee,  the  mortgage  must  be  recorded  in  the  office  of  the  clerk  of  the  town 
where  the  mortgagor  resides,  or  where  the  property  is,  if  he  be  a  non-resident.  The 
mortgagee  may  take  possession  after  condition  broken.  If  there  are  any  provisions 
in  the  instrument,  the  property  may  be  sold  in  accordance  therewith.  Redemption 
at  law  may  be  had  at  any  time  within  sixty  days  after  breach,  unless  the  property  has 
been  sold  as  above.     The  equity  may  be  foreclosed  by  bill  in  equity. 

SOUTH  CAROLINA. — The  mortgage  must  be  recorded  within  forty  days  in 
the  office  of  the  register  of  mesne  conveyances  in  the  county  where  the  mortgagor 
resides,  or,  if  he  be  a  non-resident,  where  the  property  is.  The  mortgagee  may  take 
possession  of  the  property  after  breach  of  condition,  and  sell  the  same,  after  posting 
notices  in  three  public  places  in  the  county,  one  of  which  shall  be  the  court-house 
door,  or  by  publishing  the  same  three  times  m  some  newspaper  published  in  the 
county,  unless  the  mortgagor  consents  in  writing  to  sale  in  some  other  mode.  When 
the  property  is  delivered  to  the  mortgagee,  the  equity  of  redemption  is  lost  unless 
the  property  is  redeemed  within  two  years  after  breach. 

SOUTH  DAKOTA. — Mortgage  must  be  in  writing  subscribed  by  the  mort- 
gagor in  the  presence  of  two  witnesses,  who  must  sign  as  such,  and  be  recorded  in 
the  office  of  the  register  of  deeds  of  the  county  in  which  the  property  is  situated,  and 
is  good  for  three  years.  No  acknowledgment  is  necessary.  It  may  be  extended 
within  thirty  days  before  the  expiration  of  three  years  from  the  date  of  filing  by  filing 
in  the  office  of  the  register  of  deeds  a  copy  of  the  mortgage  with  a  sworn  statement  of 
the  amount  then  due.  Foreclosure  may  be  by  action,  or  it  may  be  by  sale  in  accord- 
ance with  statute  which  provides  for  publication  in  a  newspaper  one  week  before  sale. 


662  MORTGAGES   OF  PERSONAL   PROPERTY. 

for  sales  at  particular  places  on  Saturdays,  and  report  of  sale  to  be  made  in  ten  days 
and  filed  with  the  register  of  deeds. 

TENNESSEE.— Mortgages  must  be  acknowledged  or  proved  and  registered 
in  the  county  where  the  mortgagor  resides.  If  the  mortgage  contains  a  power  of  sale, 
it  may  be  foreclosed  in  accordance  therewith  ;  if  not,  it  is  foreclosed  by  bill  in  equity 
and  decree  therein. 

TEXAS. — A  chattel  mortgage  must  be  filed  in  the  office  of  the  clerk  of  the 
county  where  the  mortgagor  resides,  or,  if  a  non-resident,  where  the  property  is  situ- 
ated. It  is  foreclosed  by  suit,  and  the  property  is  sold  under  decree  of  the  court. 
If  the  property  is  removed  from  the  county  without  the  mortgagee's  consent,  the 
latter  is  entitled  to  immediate  possession  and  sale,  whether  the  debt  is  due  or  not. 

UTAH. — A  chattel  mortgage  must  be  accompanied  by  an  affidavit  of  the  par- 
ties that  it  is  made  in  good  faith,  and  not  intended  to  hinder  or  delay  creditors,  and 
must  be  witnessed,  acknowledged,  and  recorded  in  the  county  where  the  mortgagor 
resides,  or,  if  he  be  a  non-resident,  where  the  property  is  situated.  It  is  good  for 
ninety  days  after  maturity,  but  not  exceeding  fifteen  months  from  date.  If  it  con- 
tain a  power  sale,  it  may  be  foreclosed  by  sale  of  the  property  without  legal  proceed- 
ings, otherwise  the  foreclosure  will  be  by  suit. 

VERMONT. — Mortgages  of  personal  property  must  be  recorded  in  the  office 
of  the  clerk  of  the  town  where  the  mortgagor  resides,  or,  if  he  be  a  non-resident, 
where  the  property  is  situated,  and  must  be  accompanied  by  an  affidavit,  subscribed 
by  the  mortgagor  and  mortgagee,  that  the  mortgage  is  made  for  the  purpose  of  se- 
curing the  debt  specified  in  tlie  condition  thereof,  and  for  no  other  purpose  whatever, 
and  that  the  same  is  a  just  debt,  honestly  due,  and  owing  to  the  mortgagee.  At  any 
time  after  thirty  days  from  the  time  of  condition  broken,  the  mortgagee  may  cause 
the  property  to  be  sold  at  public  auction  by  a  public  officer  in  the  town  where  the 
mortgagor  resides,  or  where  the  property  is  situated,  provided  notice  of  the  time, 
place,  and  purpose  of  the  sale  has  been  posted  in  two  or  more  public  places  in  such 
town  ten  days  previously,  and  ten  days'  notice  in  writing  given  to  the  mortgagor. 
Any  surplus  is  paid  to  the  mortgagor,  or  applied  on  subsequent  mortgages,  if  there 
be  any  such.  The  officer  must  make  return  of  his  doings  to  be  filed  and  recorded 
when  the  mortgage  is  recorded. 

VIRGINIA. — Chattel  mortgages  are  executed,  acknowledged,  and  recorded  in 
the  same  manner  as  deeds  of  real  estate  (see  Deeds).  Chattel  mortgages  are  usually 
given  as  deeds  of  trust,  in  which  case  they  may  be  foreclosed  by  the  trustee  according 
to  the  terms  of  the  mortgage,  without  the  intervention  of  the  courts. 

WASHINGTON. — A  mortgage  of  personal  property  must  be  accompanied  by 
the  affidavit  of  mortgagor  that  it  is  made  in  good  fiith,  and  without  design  to  hinder, 
delay,  or  defraud  creditors,  and  must  be  acknowledged  and  recorded  in  the  same 
manner  as  a  deed  of  real  estate,  and  is  then  good  for  six  years  from  the  time  it  be- 
comes due.  The  mortgagee  may  take  possession  of  the  property  on  default,  or  pre- 
viously if  he  has  reasonable  ground  to  believe  that  the  security  is  endangered,  and 
may  have  it  sold  by  the  sheriff.  Notice  of  the  time  and  place  of  sale  and  amount  due 
must  be  served  on  the  mortgagor,  and  like  notice  must  be  given  of  the  sale  as  of  sales 
on  execution.     If  the  right  to  foreclose  or  amount  due  is  disputed,  the  proceedings 


ABSTRACT  OF  CHATTEL  MORTGAGES.  663 

may  be  transferred  to  the  district  court,  or  the  foreclosure  may  be  made  by  suit  in 
court  in  the  first  instance. 

WEST  VIRGINIA. — Chattel  mortgages  require  the  same  formalities  as  deeds 
of  real  estate,  must  be  executed  under  seal  or  scroll,  acknowledged,  or  else  proved 
by  two  witnesses,  and  recorded  in  the  county  where  the  property  is.  Chattel  mort- 
gages are  seldom  used,  and  are  foreclosed  in  court  of  equity  after  decree.  Deeds  of 
trust  usually  take  their  place,  and,  after  default,  the  trustee  may  sell  the  property, 
after  due  notice,  without  recourse  to  the  courts. 

WISCONSIN. — The  mortgage,  or  a  copy,  is  to  be  filed  in  the  office  of  the 
clerk  of  the  town,  city,  or  village  where  the  mortgagor  resides,  or  if  he  is  a  non-resi- 
dent, where  the  property  is  ;  and  every  two  years,  within  thirty  days  before  the  ex- 
piration thereof,  the  mortgagee  must  file  an  affidavit  showing  his  interest  in  the  mort- 
gaged property.  After  condition  broken,  the  mortgagee  may  take  possession  of  the 
property  and  sell  the  same,  and  any  surplus  over  the  debt  and  costs  must  be  returned 
to  the  mortgagor.  Mortgages  of  marked  logs  must  be  recorded  in  the  office  of  the 
lumber  inspector  of  the  district  where  the  marks  are  recorded. 

WYOMING. — A  chattel  mortgage  must  be  executed  and  acknowledged  like 
conveyances  of  real  estate,  and  recorded  in  the  clerk's  office  of  the  county  where  the 
property  is  situated.  It  is  then  valid  for  two  months  after  the  expiration  of  the  term 
for  which  it  was  given,  but  may  be  renewed  for  another  year  by  filing  an  affidavit 
setting  forth  the  mortgagee's  interest  in  the  mortgage,  and  may  be  further  renewed 
annually  in  the  same  manner.  It  is  foreclosed  by  sale  at  public  auction,  after  twenty 
days'  advertisement  of  the  time  and  place  of  such  sale. 


664  THE  LA  W  OF  PA  TENTS. 

CHAPTER    XXXIII. 
THE  LAW  OF  PATENTS. 


WHAT    MAY    BE    PATENTED. 


Section  4,886  of  the  Revised  Statutes  of  the  United  States 
provides  that  "any  person  who  has  invented  or  discovered  any 
new  and  useful  art,  machine,  manufacture,  or  composition  of 
matter,  or  any  new  and  useful  improvement  thereof,  not  known 
or  used  by  others  in  this  country,  and  not  patented  or  described 
in  any  printed  publication  in  this  or  any  foreign  country,  before 
his  invention  or  discovery  thereof,  and  not  in  public  use  or  on 
sale  for  more  than  two  years  prior  to  his  application,  unless  the 
same  is  proved  to  have  been  abandoned,  may,  upon  payment  of 
the  fees  required  by  law,  and  other  due  proceedings  had,  obtain 
a  patent  therefor." 

In  case  of  the  death  of  the  inventor,  his  legal  representa- 
tives will  be  entitled  to  apply  for  and  receive  the  patent. 

Joint  inventors  are  entitled  to  a  joint  joatent,  but  neither 
can  claim  one  separately. 

An  alien  may  obtain  a  patent  on  the  same  terms  as  a  citizen. 

Merely  conceiving  the  idea  of  a  machine  or  improvement  is 
not  such  an  "invention"  or  "discovery  "  as  will  prevent  a  sub- 
sequent inventor  from  obtaining  a  patent. 

In  order  to  have  this  effect,  the  alleged  prior  invention  must 
have  been  reduced  to  a  practical  form,  capable  of  actual  use ; 
and,  in  most  cases,  actual  use  itself  is  also  held  to  be  necessary. 

Nor  will  the  fact  of  prior  use  or  invention  abroad  prevent 
the  issue  of  the  patent,  unless  the  invention  has  been  patented 
or  described  in  some  printed  publication. 

As  between  two  rival  inventors,  however,  the  rule  is  that  he 
who  first  conceives  the  idea  of  an  invention,  and  uses  reasona- 
ble diligence  in  reducing  it  to  practice,  is  the  prior  inventor  as 
against  one  whose  conception  of  the  idea  was  later,  though  he 
was  the  first  to  reduce  the  invention  to  practice.  In  such  a 
case,  drawings,  models,  or  even  oral  descriptions  may  be  used 
for  the  purpose  of  proving  the  date  of  the  conception  of  the 
invention. 


THE  LA  W  OF  PA  TENTS.  65 5 

Patents  are  now  granted  for  the  term  of  seventeen  years, 
and  confer  on  the  patentee,  his  legal  representatives  and 
assigns,  the  exclusive  right  to  make,  use,  and  vend  the  inven- 
tion throughout  the  United  States  during  that  time. 

It  is  of  the  utmost  importance  that  the  description  of  the 
invention  in  every  patent  should  be  clear  and  accurate,  and  that 
the  claim  should  cover  neither  more  nor  less  than  the  actual 
invention. 

This  is  now  the  more  important,  as  the  right  to  surrender 
and  re-issue  a  patent  on  account  of  defects  in  these  respects, 
has  recently  been  greatly  limited  by  the  courts. 

We  therefore  earnestly  advise  every  inventor  to  employ 
some  skillful  and  experienced  solicitor  to  procure  his  patent  for 
him  whenever  it  is  possible  for  him  to  do  so. 

As  it  sometimes  happens,  however,  that  this  cannot  be  done, 
we  insert  the  following  general  instructions  for  procuring 
patents  and  attending  to  other  business  in  the  patent-office. 

Mode  of  Froceeding  to  Obtain  a  Patent. 

APPLICATION. 

All  applications  must  be  completed  for  examination  within 
two  years  after  the  filing  of  the  petition  ;  and,  in  default,  all 
such  will  be  regarded  as  abandoned,  unless  it  be  satisfactorily 
proved  to  the  office  that  such  delay  was  unavoidable.  The 
application  must  be  made  by  the  actual  inventor,  if  alive,  even 
if  the  patent  is  to  issue  to  an  assignee  ;  but,  where  the  inventor 
is  dead,  the  application  and  oath  may  be  made  by  the  executor 
or  administrator.  The  application  must  be  in  writing,  in  the 
English  language,  signed  by  the  applicant,  and  addressed  to  the 
Commissioner  of  Patents,  Washington,  D.  C.  The  following  is 
a  suitable  form,  which  may  serve  as  a  useful  guide,  but  must  be 
varied  according  to  circumstances  : 

(244.) 

Form  of  Petition. 
To  THE  Commissioner  of  Patents  : 

Your  petitioner,  A.  B.,  a  citizen  of  the  United  States,  residing  at  S.,  in 
the  County  of  M.  and  State  of  N.  [or  a  subject  of,  etc.],  prays  that  letters 
patent  be  granted  to  him  for  the  improvement  in  ,  set  forth 

in  the  annexed  specification.  A.  B. 


665  l'^^^  ^'-^  ^^'  OF  PATENTS. 

SPECIFICATION. 

The  specification  is  a  written  description  of  the  invention 
or  discovery  and  of  the  manner  and  process  of  making,  con- 
structing, compounding,  and  using  the  same,  and  is  required  to 
be  in  such  full,  clear,  concise,  and  exact  terms  as  to  enable  any 
person  skilled  in  the  art  to  which  it  appertains,  or  with  which 
it  is  most  nearly  connected,  to  make,  construct,  compound,  and 
use  the  same.  It  must  conclude  with  a  specific  and  distinct 
claim  or  claims  of  the  part,  improvement,  or  combination  which 
the  applicant  regards  as  his  invention  or  discovery. 

In  all  applications  for  mere  improvements,  the  specification 
must  distinguish  between  what  is  admitted  to  be  old  and  what 
is  described  and  claimed  to  be  the  improvement,  so  that  the 
office  and  the  public  may  understand  exactly  for  what  the 
patent  is  granted. 

Two  or  more  distinct  and  separate  inventions  may  not  be 
claimed  in  one  application  ;  but  where  several  inventions  have 
a  necessary  and  dependent  connection  with  each  other,  so  that 
all  cooperate  in  attaining  the  end  which  is  sought,  they  may  be 
so  claimed.  If  more  than  one  invention  is  claimed  in  a  single 
application,  and  they  are  found  to  be  such  that  a  single  patent 
may  not  be  issued  to  cover  the  whole,  the  inventor  must  divide 
the  application  into  separate  applications,  or  confine  the  claim 
to  whichever  invention  he  may  elect. 

The  specification  must  be  signed  by  the  inventor*  (or  by  his 
executor  or  administrator,  if  the  inventor  be  dead),  and  attested 
by  two  witnesses.  It  should  describe  the  sections  of  the  draw- 
ings (where  there  are  drawings),  and  refer  by  letters  and  figures 
to  the  different  parts. 

The  rules  of  the  Patent  Office  recommend  that  the  following 
order  of  arrangement  should  be  observed,  when  convenient,  in 
framing  the  specification  ; 

(i)  Preamble  giving  the  name  and  residence  of  the  applicant, 
the  title  of  the  invention,  and  if  the  invention  has  been  patented 
in  any  country,  a  statement  of  the  country  or  countries  in  which 
it  has  been  patented,  and  the  dates  and  numbers  of  such 
patents. 

(2)  General  statement  of  the  object  and  nature  of  the 
invention ; 


THE  LA  W  OF  PA  TENTS.  QSj 

(3)  Brief  description  of  tlie  drawings,  if  any,  showing  what 
each  view  represents ; 

(4)  Detailed  description,  explaining  fully  the  alleged  inven- 
tion, and  the  manner  of  constructing,  practicing,  operating, 
and  using  it ; 

(5)  Claim  or  claims  ; 

(6)  Signature  of  inventor  ; 

(7)  Signatures  of  two  witnesses. 

The  specification  and  claims  and  all  amendments  must  be 
written  in  a  fair,  legible  hand,  on  but  one  side  of  the  paper; 
otherwise  the  office  may  require  them  to  be  printed  ;  and  all 
interlineations  and  erasures  must  be  clearly  marked  in  marginal 
or  foot  notes  written  on  the  same  sheet  of  paper.  Legal  cap 
paper  with  the  lines  numbered  is  deemed  preferable  and  a  wide 
margin  must  always  be  reserved  on  the  left  hand  side  of  the 
page. 

(245.) 
Form  of  a  Specification  to  Accompany  a  Petition. 

To    ALL   WHOM   IT   MAY    CONCERN  : 

Be  it  known  that  I,  of  in  the  county  of 

and  State  of  have  invented  a  new  and  useful  means  for  prevent- 

ing steam  boilers  from  bursting  (for  which  I  have  received  letters  patent  in 
England,  dated  July  6,  1878,  No.  750),  and  I  do  hereby  declare  that  the 
following  is  a  full,  clear,  and  exact  description  of  the  same  : 

The  nature  of  my  invention  consists  in  providing  the  upper  part  of  a 
steam  boiler  with  an  aperture  in  addition  to  that  for  the  safety-valve,  which 
aperture  is  to  be  closed  by  a  plug  or  disk  of  alloy,  which  will  fuse  at  any 
given  degree  of  heat,  and  permit  the  steam  to  escape,  should  the  safety-valve 
fail  to  perform  its  functions. 

In  the  accompanying  drawings  Fig.  i  is  a  longitudinal  section  of  a  boiler 
embodying  my  invention,  and  Fig.  2  is  a  perspective  view  of  the  same. 

To  enable  others  skilled  in  the  art  to  make  use  of  my  invention,  I  will 
proceed  to  describe  its  construction  and  operation.  I  construct  my  steam 
boiler  in  any  of  the  known  forms,  and  apply  thereto  gauge-cocks,  a  safety- 
valve,  and  the  other  appendages  of  such  boilers ;  but  in  order  to  obviate 
the  danger  arising  from  the  adhesion  of  the  safety-valve,  and  from  other 
causes,  I  make  a  second  opening  in  the  top  of  the  boiler,  similar  to  that 
made  for  the  safet} -valve,  as  shown  at  A,  in  the  accompanying  drawing; 
and  in  this  opening  I  insert  a  plug  or  disk  of  fusible  alloy,  securing  it  in  its 
place  by  a  metal  ring  and  screws,  or  otherwise.  In  general,  I  compose  this 
fusible  metal  of  a  mixture  of  lead,  tin,  and  bismuth,  in  such  proportions  as 
will  insure  its  melting  at  a  given  temperature,  which  musi  be  that  to  which 


668  THE  LA  W  OF  PA  TENTS. 

it  is  intended  to  limit  the  steran ;  it  will,  of  course,  vaiy  with  the  pressure 
the  boiler  is  intended  to  sustain. 

I  surround  the  opening  containing  the  fusible  alloy  by  a  tube.  B,  intended 
to  conduct  off  any  steam  which  may  be  discharged  therefrom.  When  the 
temperature  of  the  steam  in  such  a  boiler  rises  to  its  assigned  hmit  the  fusi- 
ble alloy  will  melt  and  allow  the  steam  to  escape  freely,  thereby  securing  it 
from  all  danger  of  explosion. 

What  I  claim  as  my  invention,  and  desire  to  secure  by  letters  patent,  is 
the  apjjlication  to  steam  boilers  of  a  fusible  alloy  which  will  melt  at  a  given 
temperature  and  allow  the  steam  to  escape,  substantially  as  herein  described, 

{iiignatiire.) 
( IVitncsst's.) 

When  the  application  is  for  a  machine,  the  specification 
should  be  modified  accordingly. 

The  applicant  must  make  oath  or  affirmation  substantially  as 
follows,  which  is  to  be  annexed  to  the  specification : 

(246.) 

Form  of  Oath. 
State  of  > 

County  of  \^' 

the  above-named  petitioner,  a  citizen  of  and  resident  of 

in  the  county  of  and  State  of  ,  being  duly  sworn 

(or  affirmed)  deposes  and  says  that  he  verily  believes  himself  to  be  the  origi- 
nal, first,  and  sole  inventor  of  the  improvement  in  described  and 
claimed  in  the  foregoing  specification ;  that  the  same  has  not  been  patented 
to  him  or  to  others  with  his  knowledge  or  consent  in  any  country ;  that  the 
same  has  not,  to  his  knowledge,  been  in  public  use  or  on  sale  in  the  United 
States  for  more  tlvan  two  years  prior  to  this  application,  and  he  does  not 
know  and  does  not  believe  tliat  the  same  was  ever  known  or  used  prior  to 
his  invention  -thereof. 

{Inventor  s  full  name.) 
Sworn  to  and  described  before  me  this  day  of  i88     . 

{Signature  of  7;iaglsirate.) 
{Official  character) 

If  the  applicants  be  joint  inventors  the  form  of  the  oath  will 
be  changed  accordingly,  and  the  word  joint  used  instead  of  sole. 

If  the  invention  has  been  previously  patented,  the  words  "  in 
any  country  "  should  be  erased  and  the  words  "  except  in  the. 
following  countries  "  substituted,  and  the  names  of  the  countries 
and  the  date  and  number  of  each  patent  inserted. 

If  the  inventor  be  dead  the  oath  will  be  made  by  the  execf- 
utor  or  administrator  who  will  declare  his  belief  that  the  party 
named  as  inventor  was  the  original  and  first  inventor. 


THE  T.A  IV  OF  PA  TEXTS. 


669 


Citizens  of  the  British  Frovinccs  should  state  specifically 
the  provinces  of  which  they  are  citizens,  and  not  merely  that 
they  are  subjects  of  the  crown  of  Great  Britain.  The  oath 
may  be  taken  before  any  person  authorized  by  law  to  "administer 
oaths,  but  a  notary  public  or  U.  S.  Commissioner  is  preferable. 
The  oath  may  be  taken  in  a  foreign  country  before  any  min- 
ister plenipotentiary,  charge  d'affaires,  consul,  or  commercial 
agent,  holding  commission  under  the  government  of  the  United 
States,  or  before  any  notary  public  of  the  country  in  which  the 
oath  is  taken,  being  attested  in  all  cases  by  the  proper  official 
seal  of  such  notary. 

DRAWINGS. 

The  applicant  for  a  patent  is  required  by  law  to  furnish 
drawings  of  his  invention  when  the  nature  of  the  case  admits 
of  them. 

The  drawings  must  be  signed  by  the  inventor  or  by  his 
attorney  in  fact,  and  attested  by  two  witnesses,  and  must  show 
every  feature  of  the  invention  covered  by  the  claims. 

Different  views  of  the  whole  invention  and  of  its  parts  may 
be  given  in  perspective,  longitudinal,  or  cross  section,  etc.,  so 
as  clearly  to  show  their  construction  and  mode  of  operation. 
If  one  sheet  is  insufficient  for  this  purpose,  others  may  be 
added,  the  several  sheets  being  disfinguished  and  referred  to 
by  numbers.  Each  part  must  be  distinguished  by  the  same 
letter  or  number,  wherever  it  appears  in  the  several  drawings. 

The  rules  of  the  Patent  Office  require  that  all  drawings  be 
made  upon  pure  white  paper  of  a  thickness  corresponding  to 
"three  sheet  Bristol  board,"  and  that  they  shall  be  made  with 
the  pen,  and  that  India  ink  only  must  be  used.  The  size  of  a 
sheet  on  which  a  drawing  is  made  must  be  exactly  10  by  15 
inches.  One  inch  from  its  edge  a  single  marginal  line  is  to  be 
drawn,  leaving  the  "sight"  precisely  8  by  13  inches. 

Within  this  margin  all  work  and  signatures  must  be 
included.  One  of  the  shorter  sides  is  regarded  as  the  top, 
a:id  measuring  downward  from  the  marginal  line  a  space  of  not 
less  than  i^-  inch  is  to  be  left  blank  for  the  heading  of  title, 
name,  number,  and  date. 

The  signature  of  the  inventor  is  to  be  placed  at  the  lower 


670  THE  LA  W  OF  PA  TENTS. 

right  hand  corner  of  the  sheet,  and  the  signatures  of  the  wit- 
nesses at  the  lower  left  hand  corner,  all  within  the  marginal 
line.  The  title  is  to  be  written  in  pencil  on  the  back  of  the 
sheet.  The  permanent  names  and  title  will  be  supplied  by 
the  office. 

Drawings  should  be  rolled  for  transmission  to  the  office,  — 
not  folded. 

MODEL. 

A  model  is  no  longer  required,  unless  the  examiner  to  whom 
the  case  is  referred  deems  it  necessary,  and  of  this  the  applicant 
will  be  duly  notified. 

It  must  be  neatly  and  substantially  made,  and  of  durable 
material,  metal  being  preferred,  and  must  not  exceed  one  foot 
in  length,  breadth,  or  height.  If  made  of  wood,  it  must  be 
painted  or  varnished,  and  the  parts  must  be  securely  fastened 
without  glue. 

Whenever  practicable,  the  name  of  the  inventor  should  be 
permanently  affixed. 

When  the  invention  or  discovery  consists  of  a  composition 
of  matter,  the  commissioners  may  require  the  applicant  to 
furnish  a  specimen  of  the  composition  and  of  its  ingredients 
sufficient  in  quantity  for  the  purpose  of  experiment. 

In  all  cases  where  the  article  is  not  perishable,  a  specimen 
of  the  composition  claimed,  put  up  in  proper  form  to  be  pre 
served  by  the  office,  must  be  furnished,  if  required. 

COMPLETION    OF    THE    APPLICATION. 

No  application  is  examined,  nor  is  the  case  placed  upon  the 
files  for  examination,  until  the  preliminary  fee  is  paid,  and 
the  specification,  with  the  petition,  oath,  and  drawings  (when 
required),  filed.  It  is  desirable  that  everything  necessary  to 
make  the  application  complete  should  be  deposited  in  the  office 
at  the  same  time. 

OF    THE    EXAMINATION. 

All  cases  in  the  Patent  Office  are  arranged  in  classes,  which 
are  taken  up  for  examination  in  regular  rotation  ;  those  in  the 
same  class  being  examined  and  disposed  of,  as  far  as  practicable, 
in  the  order  in  which  the  respective  applications  are  completed. 


THE  LAW  OF  PATENTS.  6/1 

When,  however,  the  invention  is  deemed  of  pecuUar  importance 
to  some  branch  of  the  pubHc  service,  and  when,  for  that  rea- 
son, the  head  of  some  department  of  the  government  specially 
requests  immediate  action,  the  case  will  be  taken  up  out  of  its 
order.  These,  with  applications  for  re-issue,  and  for  inventions 
for  which  a  foreign  patent  has  been  issued,  are  the  only  excep- 
tions to  the  rule  above  stated  in  relation  to  the  order  of 
examination. 

REJECTIONS. 

Whenever,  on  examination,  any  claim  of  an  application  is 
rejected  for  any  reason  whatever,  the  applicant  will  be  notified 
thereof,  and  the  reason  for  such  rejection  will  be  fully  and  pre- 
cisely stated,  and  such  information  and  references  given  as  may 
be  useful  in  judging  of  the  propriety  of  prosecuting  the  appli- 
cation or  of  altering  the  specification  or  claims  ;  and  if,  after 
receiving  such  notice,  the  applicant  shall  persist  in  his  claim, 
with  or  without  altering  his  specification,  the  case  will  be 
re-examined.  If,  on  re-examination,  it  shall  be  again  rejected, 
the  reasons  therefor  will  be  fully  and  precisely  stated. 

AMENDMENTS. 

The  applicant  has  a  right  to  amend  his  specification  or 
claims  before  or  after  the  first  rejection  ;  and  he  may  amend  as 
often  as  the  examiner  presents  any  new  references  or  reasons 
for  rejection.  In  so  amending  the  applicant  must  clearly  point 
out  all  of  the  patentable  novelty  which  he  thinks  the  case  pre- 
sents, in  view  of  the  state  of  the  art  disclosed  by  the  references 
cited  or  objections  made. 

He  must  also  show  how  the  amendments  avoid  such 
references  or  objections. 

No  alterations  or  amendments,  except  of  clerical  errors,  will 
be  allowed  after  an  appeal  to  the  examiner-in-chief,  or  after  the 
patent  has  been  ordered  to  issue,  unless  the  same  are  approved 
by  the  examiner  in  charge. 

All  amendments  of  the  model,  drawings  or  specifications, 
must  conform  to  at  least  one  of  them  as  they  were  at  the  time 
of  the  filing  of  the  -application  ;  and  all  amendments  of  specifi- 
cations or  claims  must  be  made  on  separate  sheets  of  paper 
from  the  original,   and   must   be   filed    in   the  manner  above 


6^2  THE  LA  IV  OF  PA  TENTS. 

directed.  Even  when  the  amendment  consists  in  striking  out 
a  portion  of  the  specification,  or  other  paper,  the  same  course 
should  be  observed.  No  erasures  must  be  made.  The  papers 
must  remain  forever  just  as  they  were  when  filed,  so  that  a  true 
history  of  all  that  has  been  done  in  the  case  may  be  gathered 
from  them. 

The  following  are  forms  proper  to  be  observed  in  such  cases : 

Form  of  Amendment  of  Specification. 

To    THE    COMMISSIOXER    OF    PATENTS. 

In  the  matter  of  my  application  for  letters  patent  for  an  improvem.ent  in 
,  filed  ,  serial  number 

"  I  hereby  amend  my  specification  by  inserting  the  following  words  after 
the  word  ,  in  the  hne  of  the  page  thereof"  (here  should 

follow  the  words  that  are  to  be  inserted);  or,  "I  hereby  amend  my  specifi- 
cation by  striking  out  the  line  of  the  page  thereof ;  "  or,  "b> 
striking  out  the  first  and  fourth  clauses  of  the  claim  appended  thereto"  ;  (ot 
whatever  may  be  the  amendment  desired  by  the  applicant.) 

Signed  at  ,  in  the  county  of  ,  and 

State  of  ,  i88     . 

{Signatrire.) 

In  each  case  the  exact  word  to  be  stricken  out  or  inserted 
should  be  clearly  described,  and  the  precise  point  indicated 
where  any  insertion  is  to  be  made.  When  more  than  one 
alteration  is  made,  a  separate  paragraph  should  be'  devoted  to 
each. 

WITHDRAWALS. 

Although  an  application  be  rejected,  no  money  paid  thereon, 
nor  for  a  design,  nor  for  a  re-issue,  can  be  withdrawn  from  the 
Patent  Office  by  the  applicant. 

APPEALS. 

After  an  application  for  a  patent  has  been  twice  rejected  by 
the  examiner  having  it  in  charge,  it  ma}'-,  at  the  option  of  the 
applicant,  be  brought  before  the  board  of  examiners-in-chief,  on 
payment  of  a  fee  of  ten  dollars. 

For  this  purpose,  a  petition  in  writing  must  be  filed,  signed 
by  the  party  or  his  authorized  agent  or  attorney,  setting  forth 
the  points  of  the  decision  upon  which  the  appeal  is  taken. 


THE  LA  IV  OF  PA  TENTS.  673 

(247.) 
Form  of  Appeal  to  the  Examiners-in-Chief. 
To  THE  Commissioner  of  Patents. 

Sir,  —  I  hereby  appeal  to  the  examiners-in-chief  from  the  decision  of 
the  principal  examiner  in  the  matter  of  my  application  for  a  patent  for  an 
improvement  in  {Jiere  state  the  subject  of  the  in7ietitioti)  filed  , 

rejected  a  second  time  on  day  of  .     The  following  are  the 

points  of  the  decision  on  which  the  appeal  is  taken. 

Respectfully, 
(Place  and  date  of  signing.)  {Signature.) 

The  •  appeal  must  be  submitted  to  the  primary  examiner, 
who  will,  if  he  finds  it  regular  in  form,  furnish  the  examiners- 
in-chief  with  a  written  statement  of  the  grounds  of  his  decis- 
ion, with  copies  of  the  rejected  claims  and  the  references 
applicable  thereto.  The  appellant  must,  before  the  day  of 
hearing,  file  a  brief  of  the  authorities  and  arguments  on  which 
he  relies  to  sustain  his  appeal.  If  he  desires  to  be  heard  orally 
he  must  so  indicate  when  he  files  his  appeal. 

The  examiners-in-chief  will  consider  the  case  as  it  was  when 
last  passed  upon  by  the  primary  examiner,  merely  revising  his 
decisions  so  far  as  they  were  adverse  to  the  applicant. 

All  cases  which  have  been  acted  on  by  the  board  of  examiners' 
in-chief  may  be  brought  before  the  commissioner  in  person, 
upon  a  written  request  to  that  effect,  and  upon  the  payment  of 
the  fee  of  twenty  dollars  required  by  law.  A  decision  delibei"- 
ately  made  and  approved  by  one  commissioner  will  not  b«i 
disturbed  by  his  successor.  The  only  remaining  remedy  will 
be  by  appeal  in  those  cases  allowed  by  law  to  the  judges  of  the 
Supreme  Court  of  the  District  of  Columbia. 

The  mode  of  appeal  from  the  decision  of  the  ofhce  to  the 
judges  of  the  Supreme  Court  of  the  District  of  Columbia  is  by 
giving  written  notice  thereof  to  the  commissioner,  filing  in  the 
Patent  Ofhce,  within  thirty  days  after  notice  of  the  decisio-^, 
reasons  of  appeal,  and  paying  to  him  the  sum  of  twenty-five 
dollars.  Printed  forms  of  notice  of  appeal,  of  the  reasons  of 
appeal,  of  the  petition,  and  also  the  rules  of  practice  of  the 
Supreme  Court  of  the  District  of  Columbia  respecting  appeals, 
will  be  forwarded  from  the  Patent  Ofifice  to  any  one  wishing  to 
make  an  appeal,  on  his  request. 
43 


674 


THE  LA  W  OF  PA  TENTS. 


INTERFERENCES. 

When  each  of  two  or  more  persons  claims  to  be  the  first 
inventor  of  the  same  thing,  an  "  interference "  is  declared 
between  them,  and  a  trial  is  had  before  an  officer  called  the 
examiner  of  interferences.  Nor  does  the  fact  that  one  of  the 
parties  has  already  obtained  a  patent  prevent  such  an  interfer- 
ence ;  for,  although  the  commissioner  has  no  power  to  cancel  a 
patent  already  issued,  he  may,  if  he  finds  that  another  person 
was  the  prior  inventor,  give  him  also  a  patent,  and  thus  place 
them  on  an  equal  footing  before  the  courts  and  the  public.  If 
an  applicant  for  a  re-issue  embraces  in  his  amended  specifica- 
tion any  new  or  additional  description  of  his  invention,  or 
enlarges  his  claim,  or  makes  a  new  one,  and  thereby  includes 
therein  anything  which  has  been  claimed  in  any  patent  granted 
jjubsequent  to  the  date  of  his  original  application,  as  the  inven- 
tion of  another  person,  an  interference  vv^ill  be  declared  between 
the  application  and  any  unexpired  patent,  or  pending  applica- 
tion, in  which  the  same  thing  is  claimed;  but  not  where  such 
pending  application  for  re-issue  claims  only  what  was  granted 
in  the  original  patent. 

When  an  application  is  found  to  conflict  with  a  caveat,  the 
caveator  is  allowed  a  period  of  three  months  within  which  to 
present  an  application,  when  an  interference  may  be  declared. 
In  cases  of  interference,  patentees  have  the  same  remedies  by 
appeal  as  applicants  in  pending  applications. 

Each  party  to  the  interference  will  be  required  to  file  a  con- 
cise statement  under  oath  showing  the  date  of  his  original  con- 
ception of  the  invention,  of  its  illustration  by  drawing  or  model, 
of  its  disclosure  to  others,  of  its  completion,  and  of  the  extent 
of  its  use. 

The  parties  will  be  strictly  held  in  their  proof  to  the  dates 
set  up  in  their  statements.  These  statements  must  be  sent 
under  seal,  and  the  name  of  the  party,  title  of  the  case,  and 
nature  of  the  invention  endorsed  on  the  envelope. 

Neither  party  is  allowed  to  see  the  statement  of  the  other 
until  both  have  been  filed. 

An  applicant  involved  in  an  interference  may,  before  the 
date  fixed  for  filing  his  statement,  disclaim  over  his  Own  sig- 
nature attested  by  two  witnesses,  the  invention  of  the  particular 


THE  LA  W  OF  PA  TEXTS.  6-5 

matter  in  issue,  and  upon  such  disclaimer  and  the  cancellation 
of  any  claims  involving  such  interfering  matter,  judgment  shall 
be  rendered  against  him  and  the  disclaimer  shall  be  embodied  in 
and  form  part  of  his  specification. 

In  cases  of  interference,  the  party  who  first  made  oath  to 
the  invention  will  be  deemed  the  first  inventor  in  the  absence 
of  all  proof  to  the  contrary.  A  time  will  be  assigned  in  which 
the  other  party  shall  complete  his  direct  testimony,  and  a 
further  time  in  which  the  adverse  party  shall  complete  the 
testimony  on  his  side;  and  a  still  further  time  in  which  the  first 
party  shall  close  his  rebutting  testimony,  but  shall  take  no 
other.  If  there  are  more  than  two  parties,  the  times  for  taking 
testimony  shall  be  so  arranged  that  each  shall  have  a  like  oppor- 
tunity in  his  turn,  each  being  held  to  go  forward  and  prove  his 
case  against  those  who  made  oath  to  their  applications  before 
him.  If  either  party  wishes  the  time  for  taking  his  testimony, 
or  for  the  hearing,  postponed,  he  must  make  application  for 
such  postponement,  and  must  show  sufficient  reason  for  it  by 
affidavit  filed  before  the  time  previously  appointed  has  elapsed, 
if  practicable  ;  and  must  also  furnish  his  opponent  with  copies 
of  his  affidavits,  and  with  seasonable  notice  of  the  time  of 
hearing  his  application. 

In  contested  cases,  whether  of  interference  or  of  extension, 
parties  may  have  access  to  the  testimony  on  file,  prior  to  the 
hearing,  in  presence  of  the  officer  in  charge  ;  or  when  practica- 
ble, copies  may  be  obtained  by  them  at  the  usual  charges. 

RE-ISSUES. 

A  re-issue  is  granted  to  the  original  patentee,  his  heirs,  or 
the  assignees  of  the  entire  interest,  when,  by  reason  of  an 
insufficient  or  defective  specification,  the  original  patent  is 
inoperative  or  invalid,  provided  the  error  has  arisen  from  inad- 
vertence, accident,  or  mistake,  without  any  fraudulent  or  decep- 
tive intention. 

Unless  applied  for  immediately  after  the  issue  of  the  original 
patent,  a  re-issue  will  not  be  allowed  for  the  purpose  of  expand- 
ing or  enlarging  the  claims  of  the  original,  even  though  the 
invention,  as  thus  claimed,  was  described  or  shown  in  the  origi- 


Ci-je  THE  LA  W  OF  PA  TENTS. 

nal  specification  and  drawings,  and  might  properly  have  been 
embraced  in  the  original  patent.  Two  years  has  been  indicated 
as  the  extreme  limit  within  which  re-issues  for  this  purpose 
will  be  allowed. 

The  courts  have  recently  construed  re-issued  patents  very 
strictly  in  this  respect,  and  it  is  therefore  very  important  that 
the  inventor  should  carefully  examine  his  patent  as  soon  as  pos- 
sible after  its  issue  to  ascertain  that  it  embraces  everything  to 
which  he  is  justly  entitled. 

Re-issued  patents  expire  at  the  same  time  that  the  original 
patent  would  have  done.  For  this  reason,  applications  for 
re-issue  will  be  acted  upon  immediately  after  they  are  com- 
pleted. 

A  patentee  may,  at  his  option,  have  in  his  re-issue  a  sepa- 
rate patent  for  each  distinct  part  of  the  invention  comprehendea 
in  his  original  application,  by  paying  the  required  fee  in  each 
case,  and  complying  with  the  other  requirements  of  the  law,  aa 
in  original  applications.  Each  division  of  a  re-issue  constitutes 
the  subject  of  a  separate  sjDecification  descriptive  of  the  part  or 
parts  of  the  invention  claimed  in  such  division  ;  and  the  draw> 
ing  may  represent  only  such  part  or  parts.  One  or  more, 
divisions  of  a  re -issue  may  be  granted,  though  other  division.^ 
shall  have  been  postponed  or  rejected.  In  all  cases  of  applica- 
tions for  re-issues,  the  original  claim  is  subject  to  re-examin?- 
tion,  and  may  be  revised  and  restricted  in  the  same  manner  ai, 
in  original  applications. 

The  petition  for  re-issue  must  be  signed  and  sworn  to  \>\- 
the  inventor  if  he  be  living,  and  must  be  accompanied  with  a 
certified  copy  of  the  abstract  of  title,  giving  the  names  of  all 
assignees  owning  any  undivided  interest  in  the  patent ;  and 
with  the  written  assent  of  such  assignees. 

The  applicant  must  also  file  with  his  petition  a  statement  set- 
ting forth  particularly  the  defects  or  insufificiencies  in  the  speci- 
fication which  render  the  patent  inoperative  or  invalid,  and  how 
such  errors  arose,  and  in  cases  where  more  was  claimed  and 
allowed  than  he  was  entitled  to  claim  as  new,  such  part  or  parts 
must  be  distinctly  pointed  out.  At  the  same  time  the  original 
patent  must  be  surrendered,  or  if  that  be  lost  an  affidavit  to 


THE  LA  IV  OF  PA  TEiVTS. 


677 


that  effect  and  a  certified  copy  of  the  patent.  New  drawings 
must  also  be  furnished  as  in  the  case  of  an  original  application. 

(24:8a.) 
Form  of  Petition  for  Re-issue. 
To  THE  Commissioner  of  Patents: 

Your  petitioner,  A.  B.,  a  citizen  of  the  United  States  residing  at  L.,  in 
the  County  of  M.  and  State  of  N.  (or  subject  of,  etc.),  prays  that  he  may  be 
allowed  to  surrender  the  letters  patent  for  an  improvement  in  , 

granted  to  him  ,  188  ,  whereof  he  is  now  sole  owner  (or  whereof 

C.  D.,  on  whose  behalf  and  with  whose  assent  this  application  is  made,  is 
now  sole  owner  by  assignment),  and  that  letters  patent  may  be  issued  to  him 
for  the  said  C.  D.)  for  the  same  invention  upon  the  annexed  amended  speci- 
fication. With  this  petition  is  filed  an  abstract  of  title,  duly  certified,  as 
required  in  such  cases.  A.  B. 

Assent  of  Assignee  to  Re-issue. 

The  undersigned,  assignee  of  the  entire  (or  undivided)  interest  in  the  above- 
mentioned  letters  patent,  hereby  assents  to  the  accompanying  application. 

C.  D. 

(249.) 

Form  of  Oath  to  be  Appended  to  Applications  for 
Re-issue. 
State  of  ^  ' 

[-SS. 

County  of  ) 

A.  B.,  the  above-named  petitioner,  being  duly  sworn,  deposes  and  says 
that  he  verily  believes  that  his  aforesaid  letters  patent  are  inoperative  (or 
invalid  or  both)  by  reason  of  a  defective  (or  insufficient)  specification  (or 
both,  or  by  reason  of  the  patentee  claiming  as  his  own  invention  or  discov- 
ery more  than  he  had  a  right  to  claim  as  new)  and  that  the  error  arose  by 
inadvertence  (accident  or  mistake)  without  any  fraudulent  or  deceptive 
intent ;  that  he  is  the  sole  owner  of  said  letters  patent  (or  that  E.  F.  is  the 
sole  owner  of  said  letters  patent,  and  that  this  application  is  made  on  the 
behalf  and  with  the  consent  of  the  said  E.  F.)  and  that  he  verily  believes 
himself  to  be  the  first  and  original  inventor  of  the  improvement  set  forth 
and  claimed  in  this  amended  specification,  and  does  not  believe  that  the  same 
was  ever  before  known  or  used.  A.  B. 

Sworn  to  and  subscribed  before  me  this  day  of  1S8    , 

C.  D. 
(JTitle  of  office^ 


678  THE  LA  W  OF  PA  TENTS. 

Applications  for  re-issues  will  not  be  kept  secret;  and  in- 
formation respecting  the  same  will  be  furnished  upon  inquiry, 
as  well  as  copies  of  the  proposed  claims  for  publication. 

DISCLAIMERS. 

Where,  by  inadvertence,  accident,  or  mistake,  the  original 
patent  is  too  broad,  a  disclaimer  may  be  filed  either  by  the 
^original  patentee  or  by  any  assignee  of  the  patent  or  of  any 
sectional  interest  therein. 

The  following  is  a  sufficient  form  for  a  disclaimer : 

(250.) 
Form  for  a  Disclaimer. 
To  THE  Commissioner  of  Patents  : 

Your  petitioner,  A.  B.,  a  citizen  of  the  United  States,  residing  at  L.  in 
the  County  of  M.  and  State  of  N.  (or  a  subject  of  &c.)  represents  that  in  the 
matter  of  a  certain  improvement  in  ,  for  which  letters  patent  of 

the  United  States,  No.         ,  were  granted  to  him  (or  to  C.  D.)  on  the 
day  of  he  is  ijiere  state  the  exact  interest  of  the  disclaimajit  j  if 

assignee^  set  out  book  and  page  where  assign?nent  is  recorded)  and  that  he 
has  reason  to  believe  that  through  inadvertence  (accident  or  mistake)  the 
specification  and  claim  of  said  letters  patent  are  too  broad,  including  that  of 
which  said  patentee  was  not  the  first  inventor. 

Your  petitioner  therefore,  hereby  enters  his  disclaimer  to  that  part  of  the 
claim  in  said  speciftcation  which  is  in  the  following  words,  to  wit : 

Witness  :  A.  B. 

E.  F. 

EXTENSIONS. 

No  patents  now  in  force  can  be  extended  except  by  a  special 
act  of  Congress. 

Such  extensions  are  rarely  granted,  and  therefore  the  rules 
of  the  office  in  reference  to  them  are  of  too  limited  application 
to  be  inserted  here. 

DESIGNS. 

Patents  for  Designs  are  provided  for  by  section  4929  of 
the  Revised  Statutes  of  the  United  States,  as  follows  : 

"Any  person,  who  by  his  own  industry,  genius,  efforts,  and 
expense,  has  invented  or  produced  any  new  and  original  design 
for  a  manufacture,  bust,  statue,  alto-relievo,  or  bas-relief ;  any 


THE  LAW  OF  PA  TENTS.  679 

new  and  original  design  for  the  printing  of  woolen,  silk,  cotton, 
or  other  fabrics  ;  any  new  and  original  impression,  ornament, 
pattern,  print,  or  picture,  to  be  printed,  painted,  cast,  or  other- 
wise placed  on  or  worked  into  any  article  of  manufacture  ;  or 
any  new,  useful,  and  original  shape  or  configuration  of  any 
article  of  manufacture,  the  same  not  having  been  known  or 
used  by  others  before  his  invention  or  production  thereof,  or 
patented  or  described  in  any  printed  publication,  may  upon 
payment  of  the  fee  prescribed  by  law,  and  other  due  proceed- 
ings had  the  same  as  in  cases  cf  inventions  or  discoveries, 
obtain  a  patent  therefor." 

Patents  for  designs  may  be  granted  for  the  term  of  three 
years  and  six  months,  or  for  seven  years,  or  for  fourteen  years, 
as  the  applicant  may  in  his  application  elect. 

A  fee  of  ten  dollars  is  to  be  paid  in  every  case  on  filing  the 
application. 

A  further  fee  of  five  dollars  is  payable  when  the  patent  it; 
issued  in  the  case  of  patents  for  seven  years,  and  one  of  twent}" 
dollars  on  patents  for  thirty  years. 

In  all  other  cases  in  which  fees  are  required  the  same  rates 
are  charged  as  in  the  case  of  patents  for  inventions  or  discov- 
eries. 

The  proceedings  on  applications  for  patents  for  designs  aro 
substantially  the  same  as  in  those  for  inventions  or  discoveries 

The  specification  must  distinctly  point  out  the  characteristic 
features  of  the  design  and  carefully  distinguish  between  what 
is  old  and  what  is  claimed  to  be  new. 

When  the  design  can  be  sufficiently  represented  by  draw- 
ings or  photographs,  no  model  will  be  required. 

When  a  photograph  or  engraving  is  employed  for  this  pur- 
pose, it  must  be  mounted  on  bristol  board  10  by  15  inches  in 
size,  and  properly  signed  and  witnessed. 

The  applicant  will  be  required  to  furnish  ten  extra  copies 
of  such  photograph  or  engraving  (not  mounted)  of  a  size  not 
exceeding  7^  inches  by  11. 

Whenever  the  design  is  represented  by  a  drawing  made  to 
conform  to  the  rules  laid  down  for  drawings  of  mechanical 
inventions,  but  one  copy  need  be  furnished. 


68o  THE  LA  W  OF  PA  TENTS. 

(251.) 
Form  of  Application  for  Patents  for  Designs. 
To  THE  Commissioner  of  Patents: 

Your  petitioner,  A.  B.,  a  citizen  of  the  United  States,  residing  at  L.,  in 
the  County  of  M.  and  State  of  N.  (or  subject,  etc.),  prays  that  letters  patent 
may  be  granted  to  him  for  the  term  of  years  for  the  new  and 

original  design  for  ,  set  forth  in  the  annexed  specification. 

A.  B. 

(252.) 
Form  of  Specification  for  Designs. 

To    ALL   WHOM    IT   MAY    CONCERN  : 

Be  it  known  the:  I,  A.  B.,  a  citizen  of  the  United  States,  residing  at  L.,  in 
the  County  of  M.  and  State  of  N.,  have  invented  and  produced  a  new  and 
'  iriginal  design  for  watch  cases  or  lockets,  of  which  the  following  is  a  speci- 
1 '.cation,  reference  being  had  to  the  accompanying  drawings  forming  part 
thereof. 

Figure  i  is  a  sectional  view  of  my  newly  designed  case,  Fig.  2  a  side 
elevation  of  the  same,  and  Fig.  3  an  edge  view,  these  three  views  being 
I'ieemed  necessary  to  fully  illustrate  my  design. 

Heretofore  watch  cases  and  lockets  have  been  made  which  presented  when 
« iewed  in  elevation  as  in  Fig.  2,  a  scalloped  outline  or  periphery,  some  being 
«'iade  to  imitate  shells.  In  these  the  scallops  extend  entirely  across  from  lid 
i,)  lid,  and  in  a  watch  case  the  center  which  holds  the  movements  is  also 
*  calloped  to  correspond. 

The  leading  feature  of  my  design  consists  in  a  raised  or  "  struck  up  "  scal- 
loped surface,  the  outlines  of  which,  when  viewed  in  elevation,  as  in  Fig.  2, 
will  fall  entirely  within  the  circular  outline  or  circumference  of  the  center. 

A  is  the  center  of  the  case,  which  is  circular  in  its  general  contour,  and 
B  B  are  the  lids.  These  are  also  circular  in  their  outer  contour  where  they 
join  the  center,  but  have  scallops,  C  C  C,  formed  upon  them  substantially 
as  represented  in  the  several  figures.  The  indented  outline  of  the  scalloped 
surface  falls  within  the  outer  contour  line  of  the  case,  thus  presenting  to  the 
eye  the  combined  effect  of  a  smooth  circular  outline  or  center  and  an 
indented  or  scalloped  outline  within  it. 

I  claim  — 

The  design  for  a  watch  case  or  locket  herein  shown  and  described,  the 
same  consisting  of  the  raised  scallops,  C  C  C,  on  the  lid,  forming  an 
indented  outline  wholly  within  the  circular  outline  of  the  edge  of  the  lid  and 
the  center  A.  A.  B. 

Witnesses: 
C.  D. 
E.  F. 


THE  LA  W  OF  PA  TENTS.  68  t 

The  form  of  oath  to  accompany  the  petition  is  substantially 
the  same  as  that  used  in  cases  of  pacents  for  inventions. 

FOREIGN    PATENTS. 

The  taking  out  of  a  patent  in  a  foreign  country  does  not 
prejudice  a  patent  previously  obtained  here  ;  nor  does  it  pre- 
vent obtaining  a  patent  here  subsequently,  if  the  invention  has 
not  been  in  public  use  in  the  United  States  for  more  than  two 
years.  When  application  is  made  for  a  patent  for  an  invention 
which  has  been  already  patented  abroad,  the  inventor  will  be 
required  to  make  oath,  that,  according  to  the  best  of  his  knowl- 
edge and  belief,  the  same  has  not  been  introduced  into  public 
and  common  use  in  the  United  States  for  more  than  two  years 
prior  to  the  application.  An  applicant  who  has  obtained  a  for- 
eign patent  or  patents,  should  state  in  what  country  or  countries 
such  patents  have  been  obtained,  and  the  dates  and  numbers 
thereof.  The  reason  of  this  is,  that  the  statute  provides  that 
the  patent  granted  in  this  country  shall  expire  with  the  foreign 
patent,  or,  if  there  be  more  than  one,  at  the  same  time  with 
that  having  the  shortest  unexpired  term  ;  and  in  no  case  can  it 
be  in  force  more  than  seventeen  years. 

CAVEATS. 

Any  citizen  of  the  United  States,  or  alien  who  has  resided 
for  one  year  last  past  in  the  United  States,  and  has  made  oath 
t)f  his  intention  to  become  a  citizen  thereof,  can  file  a  caveat  in 
the  secret  archives  of  the  patent  offx2  on  the  payment  of  a  fee 
of  ten  dollars  therefor.  And  if,  at  any  time  within  one  year 
thereafter,  another  person  applies  for  a  patent  for  the  same 
invention,  the  caveator  will  be  entitled  to  notice  to  file  his  appli- 
cation, and-  to  go  into  interference  with  the  applicant  for  the 
purpose  of  proving  priority  of  invention,  and  obtaining  the 
patent  if  he  succeed.  He  must  file  his  application  within  three 
months  from  the  day  on  which  the  notice  to  him  is  depos- 
ited in  the  post-office  at  Washington,  adding  the  regular  time 
for  the  transmission  of  the  same  to  him  ;  and  the  day  when  the 
time  for  filing  expires  shall  be  mentioned  in  the  notice  or 
indorsed  thereon.  The  caveator  will  not  be  entitled  to  notice  of 
any  application  pending  at  the  time  of  filing  his  caveat,  nor  of 


682  THE  LA  W  OF  PA  TENTS. 

any  application  filed  after  the  expiration  of  one  year  from  the 
date  of  filing  the  caveat ;  but  he  may  renew  his  caveat  at  the 
end  of  one  year  by  paying  a  second  caveat  fee  of  ten  dollars, 
which  will  continue  it  in  force  for  one  year  longer,  and  so  on  from 
year  to  year  as  long  as  the  caveator  may  desire. 

No  caveat  can  be  filed  in  the  secret  archives  of  the  office 
unless  accompanied  by  an  oath  of  the  caveator  that  he  is  a  cit- 
izen of  the  United  States,  or  that  he  is  an  alien  and  has  resided 
for  one  year  last  past  within  the  United  States,  and  has  made 
oath  of  his  intention  to  become  a  citizen  thereof  ;  nor  unless  the 
applicant  also  states  under  oath  that  he  believes  himself  the 
original  inventor  of  the  art,  machine,  or  improvement  set  forth 
in  his  caveat. 

A  caveat  need  not  contain  as  particular  a  description  of  the 
invention  as  is  requisite  in  a  specification  ;  but  still  the  descrip- 
tion should  be  sufficiently  precise  to  enable  the  office  to  judge 
whether  there  is  a  probable  interference  when  a  subsequent 
application  is  filed. 

Caveat  papers  cannot  be  withdrawn  from  the  office  nor  under- 
go alteration  after  they  have  once  been  filed  ;  but  additional 
papers  relative  to  the  invention  may  be  appended  to  the  caveat 
(their  date  being  noted),  provided  they  are  merely  amendatory 
of  the  original  caveat.  In  the  case  of  filing  papers  supplement- 
ary to  an  original  caveat,  the  right  to  notice  in  regard  to  the  sub- 
ject of  those  papers  expires  with  the  caveat;  and  any  additional 
papers  not  relating  to  the  invention  first  caveated  will  receive 
no  notice.  The  caveator,  or  any  person  properly  authorized  by 
him,  can  at  any  time  obtain  copies  of  the  caveat  papers  at  the 
usual  rates. 

The  caveat  should  be  accompanied  by  drawings  or  sketches, 
which  must  be  made  on  tracing  muslin  or  paper  which  can  be 
folded. 

The  following  is  a  proper  form  of  a  caveat : 

(254.) 
Form  of  a  Caveat. 
To  THE  Commissioner  of  Patents  : 

Ce  it  known  that  I,  A.  B.,  a  citizen  of  the   United  States,  residing  at 
,  having  invented  an  improvement  in  and  desiring 


THE  LA  W  OF  PA  TENTS.  GS3 

further  to  mature  the  same,  file  this  my  caveat  therefor  and  pray  protection 
of  my  right  until  I  shall  have  matured  my  invention. 

The  following  is  a  description  of  my  newly  invented  ,  which 

is  as  full,  clear,  and  exact  as  I  am  able  at  this  time  to  give,  reference  being 
had  to  the  drawing  hereto  annexed.  {Here  tjisert  a  dcs  ription  of  the  inven- 
tio7i,  pointing  out  its  objects  and  distinguishing  characteristics.) 

A.  B. 
Wittiesses, 
C.  D., 
E.  F. 

The  oath  of  the  caveator  accompanying  the  caveat  must  set 
forth  that  he  is  a  citizen  of  the  United  States,  or,  if  he  be  an  alien, 
that  he  has  resided  for  one  year  last  past  within  the  United 
States,  and  has  made  oath  of  his  intention  to  become  a  citizen 
thereof,  and  that  he  believes  himself  the  original  and  first 
inventor  of  the  art,  machine,  or  improvement,  set  forth  in  his 
caveat. 

ASSIGNMENTS    AND    GRANTS. 

A  patent  may  be  assigned,  either  as  to  the  whole  interest  or 
any  undivided  part  thereof,  by  any  instrument  of  writing.  No 
particular  form  of  words  is  necessary  to  constitute  a  valid  assign- 
ment; nor  need  the  instrument  be  sealed,  witnessed,  or  acknowl- 
edged. A  patent  will,  upon  request,  issue  directly  to  the 
assignee  or  assignees,  of  the  entire  interest  in  any  invention, 
or  to  the  inventor  and  the  assignee  jointly,  when  an  undivideil 
part  only  of  the  entire  interest  has  been  conveyed.  In  ever  { 
case  where  a  patent  issues  or  re-issues  to  an  assignee,  thi-, 
assignment  must  be  recorded  at  the  Patent  Office  at  least  fivo 
days  before  the  issue  of  the  patent ;  and  the  specification  must 
be  sworn  to  by  the  inventor.  Every  assignment  and  every 
grant  of  an  exclusive  territorial  right  must  be  recorded  in  the 
Patent  Office  within  three  months  from  the  execution  thereof ; 
otherwise  it  will  be  void  as  against  any  subsequent  purchaser  or 
mortgagee  for  a  valuable  consideration  without  notice ;  but,  if 
recorded  after  that  time,  it  will  protect  the  assignee,  or  grantee, 
against  any  such  subsequent  purchaser  whose  assignment  or 
grant  is  not  then  on  record. 

The  receipt  of  assignments  is  not  generally  acknowledged 
by  the  office.     They  will  be  recorded  in  their  turn  within  a  few 


684  ^-^^  ^^^  ^^  ^^  ^^  TENTS. 

days  after  their  reception,  and  then  transmitted  to  persons  enti- 
tled to  them. 

(255.) 

Form  of  Assignment  of  the  Entire  Interest  in  Letters 
Patent  before  obtaining  the  same,  and  to  be 
Recorded  preparatory  thereto. 
""Whereas  I,  of  in  the  County  of 

and  State  of  have  invented  certain  new  and  useful  improvements 

in  ploughs,  for  which  I  am  about  to  make  application  for  letters  patent  of  the 
United  States;  and  whereas  of  has  agreed  to  pur 

chase  from  me  all  the  right,  title,  and  interest  which  I  have,  or  may  have,  in 
and  to  the  said  invention,  in  consequence  of  the  grant  of  letters  patent  there- 
for, and  has  paid  to  me,  the  said  the  sum  of  five  thousand  dollars, 
the  receipt  of  which  is  hereby  acknowledged :  Now  this  indenture  witness- 
t^th,  that  for  and  in  consideration  of  the  said  sum  to  me  paid,  I  have  assigned 
\nd  transferred,  and  do  hereby  assign  and  transfer,  to  the  said 
Ihe  full  and  exclusive  right  to  all  the  improvements  made  by  me,  as  fully  set 
forth  and  described  in  the  specification  which  I  have  prepared  and  executed 
])reparatory  to  the  obtaining  of  letters  patent  therefor.  And  I  do  hereby 
;iuthorize  and  request  the  Commissioner  of  Patents  to  issue  the  said  letters 
patent  to  the  said  as  the  assignee  of  my  whole  right  and  title 
thereto,  for  the  sole  use  and  behoof  of  the  said  and  his  legal 
representatives. 

In  Testimony  "Whereof,  I  have  hereunto  set  my  hand  and  affixed  my  seal 
this  day  of  l8         . 

{Signature.)    {Seal-) 
Executed  and  Delivered  in  Presence  of 

■  (255a.) 

Form  of  Assignment  of  Patent  or  of  an  Undivided 
Interest  therein. 

To    ALL    WHOM   IT    MAY    CONCERN  : 

Whereas  of  in  the  County  of 

and  State  of  did  obtain  letters  patent  of  the  United  States 

for  ,  which  letters  patent  bear  date  and  are 

numbered.     {If  the  assignme?it  is  made  by  an  assignee  add,  and  whereas 
is  now  sole  owfter  of  said  letters  patent,  or  of  a  one-half  interest 
in  said  letters  patent  as  the  case  may  he.) 

And  "Whereas  is  desirous  of  acquiring  an  interest  therein  : 

Now  this  indenture  witnesseth  that  in  consideration  of  the  sum  of  in 

hand  paid,  the  receipt  of  which  is  hereby  acknowledged,  I,  the  said  , 

have  assigned,  sold,  and  set  over,  and  do  by  these  presents  assign,  sell,  and 
set  over  unto  the  said  all  {or  one-half,  as  the  case  may  be)  the 


THE  LA  W  OF  PA  TENTS.  68  q 

riglit,  title,  and  interest  I  have  in  and  to  the  said  letters  patent  and  the 
invention  thereby  secured. 

The  same  to  be  held  and  enjoyed  by  the  said  for  his  own 

use  and  behoof,  and  for  the  use  and  behoof  of  his  legal  representatives  to 
the  full  end  of  the  term  for  which  said  letters  were  granted,  as  fully  and 
entirely  as  the  same  would  have  been  held  and  enjoyed  by  me  had  this 
assignment  and  sale  not  been  made. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
seal  this  day  of  l88     . 

(Signature.)     {Seal.) 

Sealed  and  Delivered  in  Presence  of 

(256.) 

Form  of  a  Grant  of  a  Territorial  Right  in  a  Patent. 

Whereas  I,  of  in  the  County  of 

and  State  of  did  obtain  letters  patent  of  the  United  States  for 

which  letters  patent  bear  date  the  day  of 

l8     ;  and  whereas  of  is  desirous  of  acquiring  an 

interest  therein;  Now  this  indenture  witnesseth,  that  for  and  in  considera- 
tion of  the  sum  of  two  thousand  dollars,  to  me  in  hand  paid,  the  receipt  of 
which  is  hereby  acknowledged,  I  have  granted,  sold,  and  set  over,  and  do 
hereby  grant,  sell,  and  set  over,  unto  the  said  all  the  right,  title,  and 

interest  which  I  have  in  the  said  invention,  as  secured  to  me  by  said  letters 
patent,  for,  to,  and  in  the  several  States  of  New  York,  New  Jersey,  and 
Pennsylvania,  and  in  no  other  place  or  places ;  the  same  to  be  held  and 
enjoyed  by  the  said  for  his  own  use  and  behoof,  and  for  the  use 

and  behoof  of  his  legal  representatives,  to  the  full  end  of  the  term  for  which 
said  letters-patent  are  granted  (if  it  is  intended  to  grant  for  any  extended 
term,  then  add — and  for  the  term  of  any  extension  thereof),  as  fully  and 
entirely  as  the  same  would  have  been  held  and  enjoyed  by  me  had  this  grant 
and  sale  not  been  made. 

In  Testimony  Whereof,  I  hereunto  set  my  hand  and  affix  my  seal  this 
day  of  i8     . 

(Signature)    (Seal.) 
Sealed  and  Delivered  in  Presence  of 

LICENSES, 

The  patentee  or  any  assignee  of  the  patent  or  of  any  undi- 
vided interest  therein  may  license  others  to  practice  the  inven- 
tion to  any  extent,  and  the  grantee  of  a  territorial  interest  may 
do  the  same  within  the  limits  of  the  territory  granted  to  him. 

Such  licenses  should  be  made  in  writing,  but  this  is  not 
absolutely  essential. 


eS6  THE  LA  IV  OF  PA  TENTS. 

The  statute  does  not  require  that  licenses  should  be  recorded 
although  it  is  common  to  do  so. 

No  special  form  is  prescribed  for  licenses,  and  their  terms 
will  vary  according  to  the  special  contract  between  the  parties. 

The  following  forms,  however,  may  be  useful  as  guides : 

License  — Shop  right. 

In  conSi  .eration  of  the  sum  of  fifty  dollars  paid  b}'  the  firm  of  S.  J. 
&  Co.,  of  L.,  in  the  county  of  M.  and  State  of  N.,  I  do  hereby  license 
and  empower  the  said  S.  J.  &  Co.,  to  manufacture  in  said  L.,  the  improve- 
ment in  cotton  seed  planters,  for  which  letters  patent  of  the  United  States  No. 
71,846  were  granted  to  me,  November  13,  1878,  and  to  sell  the  machines  so 
manufactured  throughout  the  United  States,  to  the  full  end  of  the  term  for 
which  said  letters  patent  are  granted. 

Signed  at  L.  aforesaid  this  22d  day  of  April,  1884. 

A.  B. 

License— not  Exclusive— with  Royalty. 

This  agreement,  made  this  12th  day  of  September,  1884,  between  A.  B.  of 
I,.,  in  the  County  of  M.  and  State  of  N.,  party  of  the  first  part,  and  C.  D.  & 
Co.  of  O.,  in  the  County  of  R.  and  State  of  S.,  party  of  the  second  part,  wit- 
nesseth,  that  whereas  letters  patent  of  the  United  States  No.  87,540,  for  an 
improvement  in  horse  rakes,  were  granted  to  the  party  of  the  first  part,  dated 
October  4,  1875,  ^"d  whereas  the  party  of  the  second  part  is  desirous  of 
manufacturing  horse  rakes  containing  said  patented  improvement.  Now 
therefore  the  parties  have  agreed  as  follows : 

1.  The  party  of  the  first  part  hereby  licenses  and  empowers  the  party  of 
the  second  part,  subject  to  the  conditions  hereinafter  named,  to  the  end  of 
the  term  for  which  said  letters  patent  were  granted,  to  manufacture  horse 
rakes  containing  the  patented  improvements  and  to  sell  the  same  within  the 
United  States. 

2.  The  party  of  the  second  part  agrees  to  make  full  and  true  returns  to 
the  party  of  the  first  part,  upon  the  first  days  of  July  and  January  in  each 
year,  of  all  horse  rakes  containing  the  patented  improvement  manufactured 
by  them. 

3.  The  party  of  the  second  part  agrees  to  pay  to  the  party  of  the  first 
part  five  dollars  as  a  license  fee  upon  every  horse  rake  manufactured  by  said 
party  of  the  second  part  containing  the  patented  improvements,  said  pay- 
ments to  be  made  within  ten  days  after  the  days  above  provided  for  the  semi- 
annual returns. 

4.  Upon  failure  of  the  party  of  the  second  part  to  make  returns  or  to 
make  payment  of  license  fees,  as  herein  provided  for,  thirty  days  after  the 
days  herein  named,  the  party  of  the  first  part  may  terminate  this  license  by 
serving  a  written  notice  upon  the  party  of  the  second  part;  but  the  party  of 


THE  LA  W  OF  PA  TENTS.  687 

the  second  part  shall  not  therel)y  be  discharged  from  any  liability  to  the 
party  of  the  first  part  for  any  license  fees  due  at  the  time  of  the  service  of 
said  notice. 

In  witness  whereof  the  parties  above  named  have  hereunto  set  their 

hands  the  day  and  year  first  above  written. 

A.  B. 

C.  D.  &  Co. 

THE  OFFICE  FEES,  AND  HOW  PAYABLE. 

Nearly  all  the  fees  payable  to  the  Patent  Office  are  positively 
required  by  law  to  be  paid  in  advance.  For  the  sake  of  uni- 
formity and  convenience,  the  remaining  fees  arc  required  to  be 
paid  in  the  same  manner ;  that  is  to  say,  before  the  labor  is 
performed  for  which  they  are  to  be  received  in  payment. 

The  following  is  the  tariff  of  fees  established  by  law : 

On  filing  an  application  for  a  design  patent,  .         .         .  $10.00 

On  issuing  a  design  patent  for  seven  years,    .         .         .  5.00 

On  issuing  a  design  patent  for  fourteen  years,         .         .  20.00 

On  filing  a  caveat,  ........  10.00 

On  filing  an  application  for  a  patent  for  an  invention,     .  15.00 

On  issuing  each  original  patent  for  an  invention,    .         .  20.00 

On  filing  a  disclaimer,     .......  10.00 

On  every  application  for  a  re-issue,          ....  30.00 

On  every  application  for  a  division  of  a  re-issue,     .         .  30.00 
On  filing  an  appeal  from  a  primary  examiner  to  examin- 
ers-in-chief,          .         .         .         .         .         .         .         .10.00 

On  filing  an  appeal  to  the  Commissioner  from  examin- 
ers-in-chief,          ........  20.00 

On  depositing  a  trade-mark  for  registration,    .         .         .  25.00 
On  every  copy  of  a  patent  or  other  instrument,  except 

copies  of  printed  patents,  for  every  100  words,    .         .  .10 
On  every  copy  of  drawing,  ....  the  cost  of  having  it  made. 

For  recording  every  assignrr^ent  of  300  words  or  under,  i.oo 
For  recording  every  assignment,  if  over  300  and  not  over 

1,000  v/ords,          ........  2.00 

For  recording  every  assignment,  if  over  1,000  words,     .  3.00 

Certified  printed  copies  of  the  specifications  and  drawings 
of  any  patent  issued  since  Nov.  20,   1866,  and  copies  of  the 


688  THE  LA  W  OF  PA  TENTS. 

drawings  of  any  patent  granted  before  that  date,  are  furnished 
by  the  Office  at  twenty-five,  cents  each. 

The  final  fee  on  issuing  a  patent  must  be  paid  within  six 
months  after  the  time  at  which  the  patent  was  allowed,  and 
notice  thereof  sent  to  the  applicant  or  his  agent.  And  if  the 
final  fee  for  such  patent  be  not  paid  within  that  time,  the 
patent  will  be  withheld,  and  the  invention  therein  described 
become  public  property  as  against  the  applicant  therefor,  unless 
he  shall  file  a  new  application  therefor  within  two  years  from 
the  date  of  the  allowance  of  the  original  application. 

The  money  for  the  payment  of  fees  may  be  paid  to  the 
Commissioner  or  deposited  with  an  Assistant  Treasurer  of  the 
United  States,  or  other  officer  authorized  to  receive  the  same, 
taking  his  certificate,  and  remitting  the  same  to  the  Office, 
directed  to  the  Commissioner  of  Patents.  When  this  cannot 
be  done  without  inconvenience,  the  money  may  be  remitted  by 
mail  ;  and  in  ever}'-  case  the  letter  should  state  the  exact 
amount  enclosed.  Letters  containing  money  should  be  regis- 
tered at  the  post-office  \vhere  mailed. 

In  no  case  should  money  be  enclosed  with  models. 

TAKING    AND    TRANSMITTING    TESTIMONY. 

In  interferences  and  other  contested  cases,  the  testimony 
of  witnesses  is  taken  on  oath  by  written  depositions  in  th^e 
presence  of  a  magistrate,  by  whom  the  questions  and  answers 
are  written  down  and  afterwards  transmitted  under  seal  to  the 
Commissioner  of  Patents. 

Due  notice  must  be  given  by  the  party  examining  the 
witness  to  the  other  party,  in  order  that  he  may  be  present 
personally  or  by  attorney,  and  cross-examine. 

The  rules  established  by  the  Office,  in  reference  to  the 
taking  and  transmitting  of  evidence  in  such  cases,  will  be 
furnished  gratis  on  application  to  the  Commissioner. 

THE    DOMINION    OF    CANADA. 

The  Patent  Law  of  the  Dominion  of  Canada  was  enacted 
in  1872.  It  is  long  and  minute;  but  in  its  leading  principles 
and  purpose  it  resembles  the  law  of  the  United  States.  The 
principal  differences  are  as  follows  : 


THE  LA  W  OF  PA  TENTS. 


6S9 


The  Patent  Office  is  a  part  of  the  Department  of  Agricul- 
ture. There  is  a  Commissioner  of  Patents,  and  applications 
for  any  purpose  connected  with  patents  must  be  made  to  him. 

No  inventor  can  have  a  patent  if  his  invention  has  been  in 
public  use  or  on  sale  more  than  a  year  in  Canada,  previous  to 
his  application,  with  the  consent  of  the  inventor.  Nor  if  a 
patent  for  the  same  exists  in  another  country  more  than  twelve 
months  previous  to  application  in  Canada.  If,  during  said 
twelve  months,  any  person  begins  to  manufacture  the  article 
in  Canada,  he  shall  have  the  right  to  continue  the  same. 
Applicant  must  elect  a  domicil  in  Canada  for  the  purposes  of 
this  patent,  and  declare  the  same  in  his  petition.  The  article 
to  be  sold  under  this  patent  must  be  made  in  Canada,  and 
not  imported  into  it  ;  and  the  manufacture  must  begin  within 
two  years  from  the  granting  of  the  patent ;  but  these  two 
years  may  be  extended  by  the  Commissioner.  The  patent 
right  is  granted  for  five,  ten,  or  fifteen  years,  at  the  option  of 
the  applicant. 


TRADE-MARKS. 

By  the  common  law  a  merchant  or  manufacturer  is  entitled 
to  the  exclusive  use  of  a  "trade  mark"  to  designate  his  goods, 
provided  he  has  used  it  so  long  that  it  has  become  generally 
recognized  as  his. 

The  trade-mark  may  consist  of  words,  letters,  figures,  or 
drawings,  or  a  combination  of  two  or  more  of  them. 

It  must,  however,  indicate  only  the  origin  or  ownership  of 
the  goods  to  which  it  is  applied,  and  not  be  descriptive  of  their 
character,  quality,  or  composition. 

Thus,  for  example,  a  miller  may  mark  his  flour  with  the 
figure  of  an  eagle  or  with  the  name  of  his  mill,  and  these  marks 
will  after  a  time  be  recognized  as  indicating  that  the  flour  so 
marked  is  made  by  him  or  at  his  mill. 

But  he  cannot  appropriate  to  his  exclusive  use  such  words 
as  "snow  white,"  "superfine,"  "family  flour,"  or  any  other 
44 


690  ^"^^^  ^'-^  ^  <^^  ^^  TENTS. 

descriptive  term,  as  any  other  person  manufacturing  a  similar 
article  has  a  right  to  describe  it  by  any  appropriate  language. 

So  the  name  of  the  place  where  a  manufacturer  carries  on 
business  cannot  be  so  appropriated  as  to  prevent  others  in  the 
same  place  from  using  it  in  connection  with  their  goods. 

No  one  will,  however,  be  permitted  to  represent  his  goods 
as  the  goods  of  another,  by  imitating  the  latter's  labels,  descrip- 
tions, or  peculiar  methods  of  putting  up  his  goods,  even  if  the 
latter  do  not  strictly  constitute  a  trade-mark ;  and  in  all  cases 
of  this  kind  it  is  enough  for  the  plaintiff  to  show  that  the  imita- 
tion is  sufficiently  close  as  to  deceive  the  public,  although  there 
be  differences  in  the  details. 

If,  however,  the  plaintiff  is  himself  defrauding  the  public  by 
falsely  describing  the  character,  quality,  or  composition  of  his 
goods,  or  when  the  articles  themselves  are  injurious  in  their 
character,  he  can  claim  no  assistance  from  a  court  of  equity. 

A  trade-mark  may  be  sold  with  the  business  with  which  it 
is  connected  or  the  factory  where  the  goods  are  made  to  which 
it  is  applied.  In  the  settlement  of  partnership  affairs,  or  in 
connection  with  the  sale  of  the  good  will  of  a  business,  it  is 
often  an  item  of  great  value. 

An  act  of  Congress,  passed  in  1870,  provided  for  the  gen- 
eral  registration  of  trade-marks,  but  was  held  by  the  Supreme 
Court  of  the  United  States  to  be  unconstitutional,  and  was 
therefore  repealed. 

The  present  act,  approved  March  3,  1881,  is  limited  in  its 
operation  to  trade-marks  used  in  commerce  with  foreign  nations 
or  with  the  Indian  tribes. 

Its  provisions  are  as  follows  : 

"  Owners  of  trade-marks  used  in  commerce  with  foreign 
nations,  or  with  the  Indian  tribes,  provided  such  owners  shall 
be  domiciled  in  the  United  States,  or  located  in  any  foreign 
country  or  tribes  which  by  treaty,  convention,  or  law,  affords 
similar  privileges  to  citizens  of  the  United  States,  may  obtain 
registration  of  such  trade-marks  by  complying  with  the  follow- 
ing requirements  : 

First.  By  causing  to  be  recorded  in  the  Patent  Office  a  state- 
ment specifying  name,  domicile,  location,  and  citizenship  of  the 


TRADE-MARKS.  69 1 

party  applying;  the  class  of  merchandise  and  the  particular 
description  of  goods  comprised  in  such  class  to  which  the 
particular  trade-mark  has  been  appropriated ;  a  description 
of  the  trade-mark  itself,  with  fac-similes  thereof,  and  a  state- 
ment of  the  mode  in  which  the  same  is  applied  and  affixed 
to  goods,  and  the  length  of  time  during  which  the  trade-mark 
has  been  used. 

Second.  By  paying  into  the  Treasury  of  the  United  States 
the  sum  of  twenty-five  dollars,  and  complying  with  such  regula- 
tions as  may  be  prescribed  by  the  Commissioner  of  Patents. 

Sec.  2.  That  the  application  prescribed  in  the  foregoing 
section  must,  in  order  to  create  any  right  whatever  in  favor  of 
the  party  filing  it,  be  accompanied  by  a  written  declaration, 
verified  by  the  person,  or  by  a  member  of  a  firm,  or  by  an 
officer  of  a  corporation  applying,  to  the  effect  that  such  party 
has  at  the  time  a  right  to  the  use  of  the  trade-mark  sought 
to  be  registered,  and  that  no  other  person,  firm,  or  corporation 
has  the  right  to  such  use,  either  in  the  identical  form  or  in  any 
such  near  resemblance  thereto  as  might  be  calculated  to  deceive; 
that  such  trade-mark  is  used  in  commerce  with  foreign  nations 
or  Indian  tribes,  as  above  indicated  ;  and  that  the  description 
and  fac-similes  presented  for  registry  truly  represent  the  trade- 
mark sought  to  be  registered. 

Sec.  3.  That  the  time  of  the  receipt  of  any  such  application 
shall  be  noted  and  recorded.  But  no  alleged  trade-mark  shall 
be  registered  unless  the  same  appear  to  be  lawfully  used 
as  such  by  the  applicant  in  foreign  commerce  or  commerce  with 
Indian  tribes  as  above  mentioned  or  is  within  the  provision  of 
a  treaty,  convention,  or  declaration  with  a  foreign  power ;  nor 
which  is  merely  the  name  of  the  applicant ;  nor  which  is 
identical  with  a  registered  or  known  trade-mark  owmed  by  an- 
other and  appropriate  to  the  same  class  of  merchandise,  or 
which  so  nearly  resembles  some  other  person's  lawful  trade- 
mark as  to  be  likely  to  cause  confusion  or  mistake  in  the  mind 
of  the  public,  or  deceive  purchasers.  In  an  application  for 
registration  the  Commissioner  of  Patents  shall  decide  the  pre- 
sumptive lawfulness  of  claim  to  the  alleged  trade-mark  ;  and  in 
any  dispute  between  an  applicant  and  a  previous  registrant,  or 
between  applicants,  he  shall  follow,  so  far  as  the  same  may  be 
applicable,  the  practice  of  the  courts  of  equity  of  the  United 
States  in  analogous  cases. 

Sec.  4.  That  certificates  of  registry  of  trade-marks  shall  be 
issued  in  the  name  of  the  United  States  of  America,  under  the 
seal  of  the  Department  of  the  Interior,  and  shall  be  signed 
by  the  Commissioner  of  Patents,  and  a  record  thereof,  together 


692 


THE  LA  W  OF  PA  TENTS. 


with  printed  copies  of  the  specifications,  shall  be  ls;ept  in  books 
for  that  purpose.  Copies  of  trade -marks  and  of  statements  and 
declarations  iiled  therewith  and  certificates  of  registry  so  signed 
and  sealed  shall  be  evidence  in  any  suit  in  which  such  trade- 
marks shall  be  brought  in  controversy. 

Sec.  5.  That  a  certificate  of  registry  shall  remain  in  force  for 
thirty  years  from  its  date ;  except  in  cases  where  the  trade-mark 
is  claimed  for  and  applied  to  articles  not  manufactured  in  this 
country,  and  in  -vhich  it  receives  protection  under  the  laws 
of  a  foreign  country  for  a  shorter  period,  in  which  case  it  shall 
cease  to  have  any  force  in  this  country  by  virtue  of  this  act  at 
the  time  that  such  trade-mark  ceases  to  be  exclusive  property 
elsewhere.  At  any  time  during  the  six  months  prior  to  the 
expiration  of  the  term  of  thirty  years  such  registration  may  be 
renewed  on  the  same  terms,  and  for  a  like  period. 

Sec.  6.  That  applicants  for  registration  under  this  act  shall 
be  credited  for  any  fee,  or  part  of  a  fee,  heretofore  paid  into  the 
Treasury  of  the  United  States  with  intent  to  procure  protection 
for  the  same  trade-mark. 

Sec.  7.  That  registration  of  a  trade-mark  shall  be  prima  facie 
evidence  of  ownership.  Any  person  who  shall  reproduce, 
counterfeit,  copy,  or  colorably  imitate  any  trade-mark  registered 
under  this  act  and  affix  the  same  to  merchandise  of  substantially 
the  same  descriptive  properties  as  those  described  in  the 
registration,  shall  be  liable  to  an  action  on  the  case  for  damages 
tor  the  wrongful  use  of  said  trade-mark,  at  the  suit  of  the 
owner  thereof ;  and  the  part  aggrieved  shall  also  have  his 
remedy  according  to  the  course  of  equity  to  enjoin  the  wrongful 
use  of  such  trade-mark  used  in  foreign  commerce  or  commerce 
with  Indian  tribes,  as  aforesaid,  and  to  recover  compensation 
therefor  in  any  court  having  jurisdiction  over  the  person  guilty 
of  such  wrongful  act ;  and  courts  of  the  United  States  shall 
have  original  and  appellate  jurisdiction  in  such  cases  without 
regard  to  the  amount  in  controversy. 

Sec.  8.  That  no  action  or  suit  shall  be  maintained  under  the 
provisions  of  this  act  in  any  case  when  the  trade-mark  is  used 
in  any  unlawful  business,  or  upon  any  article  injurious  in  itself, 
or  which  mark  has  been  used  with  the  design  of  deceiving  the 
public  in  the  purchase  of  merchandise,  or  under  any  certificate 
of  registry  fraudulently  obtained. 

Sec.  9.  That  any  person  who  shall  procure  the  registry  of  a 
trade-mark,  or  of  himself  as  the  owner  of  a  trade-mark  or  an 
entry  respecting  a  trade-mark,  in  the  office  of  the  Commissioner 
of  Patents,  by  a  false  or  fraudulent  representation  or  declara- 
tion, orally  or  in  writing,  or  by  any  fraudulent  means,  shall  be 


TRADE  MARKS. 


^3 


liable    to  pay   any   damages   sustained   in   consequence  thereof 
to  the  injured  party,  to  be  recovered  in  an  action  on  the  case. 

Sec.  io.  That  nothing  in  this  act  shall  prevent,  lessen,  im- 
peach,  or  avoid  any  remedy  at  law  or  in  equity  uhich  any  party 
aggrieved  by  any  wrongful  use  of  any  trade-mark  might  have 
had  if  the  provisions  of  this  act  had  not  been  passed. 

Sec.  II.  That  nothing  in  this  act  shall  be  construed  as 
unfavorably  affecting  a  claim  to  a  trade-mark  after  the  term  of 
registration  shall  have  expired ;  nor  to  give  cognizance  to  any 
court  of  the  Unite i  States  in  an  action  or  suit  between  citizens 
of  the  same  State,  unless  the  trade-mark  in  controversy  is  used 
on  goods  intended  to  be  transported  to  a  foreign  country,  or  in 
lawful  commercial  intercourse  with  an  Indian  tribe. 

Sec.  12.  That  the  Commissioner  of  Patents  is  authorized 
to  make  rules  and  regulations  and  prescribe  forms  for  the 
transfer  of  the  right  to  use  trade-marks,  and  for  recording  such 
transfers  in  his  office. 

Sec.  13.  That  citizens  and  residents  of  this  country  wishing 
the  protection  of  trade-marks  in  any  foreign  country,  the  laws 
of  which  require  registration  here  as  a  condition  precedent 
to  getting  such  protection  there,  may  register  their  trade-marks 
for  that  parpose  as  is  above  allowed  to  foreigners,  and  ha\e 
certificate  thereof  from  the  Patent  Office. 

The  general  rules  of  practice  in  the  Patent  Office  in  respect 
to  applications  for  the  registry  of  trade-marks  arc  substantially 
the  same  as  those  relating  to  patents  for  inventions. 

The  application  consists  of  a  letter  of  advice,  statement, 
and  declaration  under  oath,  signed  by  the  person,  or  by  a 
member  of  the  firm,  or  officer  of  the  corporation  making  the 
application,  and  Xho.  facsimile  with  duplicates  thereof. 

The  statement  and  declaration  should  be  written  on  one 
side  of  the  paper  only.  The  fee  of  twenty-five  dollars  is 
required  on  filing  the  application. 

Applicant  must  in  every  case  which  admits  of  it  furnish  a 
drawins:  thereof  which  conforms  to  the  rules  for  drawings  of 
mechanical  patents.  If  for  any  reason  such  drawing  does  not 
constitute  a  fac-siinile  of  the  trade  mark,  two  copies  of  it  as 
actually  used  must  be  deposited  in  addition  to  the  required 
drawins:. 


694 


THE  LA  IV  OF  PA  TENTS. 


The    following   forms    illustrate    the    manner  of    preparing 

papers  for  applications  for  registry  of  trade-marks  under  the 

foregoing  act  : 

Letter  of  Advice. 

To  THE  Commissioner  of  Patents: 

The  undersigned  presents  herewith  a  fac  simile  of  his  lawful  trade-mark, 
and  requests  that  the  same,  together  with  the  accompanying  statement  and 
declaration,  may  be  registered  in  the  United  States  Patent  Office,  in  accord- 
ance with  the  law  in  such  cases  made  and  provided.  A.  B. 

statement. 

To    ALL    WHOM    IT   MAY    CONCERN  : 

Be  it  known  that  I,  A.  B.,  a  citizen  of  the  United  States,  residing  at 
in  the  State  of  ,  and  doing  business  at  No.  —  Street  in 

said  city,  have  adopted  for  my  use  a  trade-mark  for  wheat  flour,  of  which 
the  following  is  a  full,  clear,  and  exact  specification: 

My  trade-mark  consists  of  a  representation  of  a  Rocky  Mountain  sheep 
and  the  words  Big  Horn. 

These  have  generally  been  arranged  as  shown  in  the  accompanying  fac- 
simile, in  which  the  animal  named,  popularly  known  as  the  "  Big  Horn,"  is 
represented  in  an  erect  attitude  upon  a  cliff  or  rock.  In  the  background  are 
mountains  covered  with  forests,  with  distant. white  peaks;  upon  the  sky 
portion  are  the  words  Big  Horn.  But  the  various  accessories  of  the  picture 
may  be  varied  at  pleasure  or  altogether  omitted,  without  materially  altering 
the  character  of  the  said  trade-mark,  the  essential  features  of  which  are  the 
words  Big  Horn  and  the  representation  of  a  Rocky  Mountain  sheep. 

This  trade-mark  I  have  used  continuously  in  my  business  since  July  i, 
1884. 

The  class  of  merchandise  to  which  this  trade-mark  is  appropriated  is 
flour,  and  the  particular  description  of  goods  comprised  in  such  class  on 
which  I  use  it,  is  wheat  flour.     It  is  usually  affixed  to  the  goods  by  printing' 
it  on  the  bags,  or  stenciling  it  on  the  heads  of  barrels  in  which  the  flour  is 
packed.  A.  B. 

Witnesses :     C.  D.  and  E.  F. 

Declaration 

State  of  ) 

>  ss. 
County  of  ) 

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  applicant  named 
in  the  foregoing  statement;  that  he  verily  believes  that  the  foregoing  state- 
ment is  true;  that  he  has  at  this  time  a  right  to  the  use  of  the  trade-mark 
therein  described;  that  no  other  person,  firm,  or  corporation  has  the  right 
to  such  use,  either  in  the  identical  form  or  in  any  such  near  resemblance 
thereto  as  might  be  calculated  to  deceive ;  that  it  is  used  by  him  in  com- 
merce between  the  United  States  and  foreign  nations  or  Indian  tribes,  and 


THE  LA  W  OF  PA  TENTS.  695 

particularly  with  {here  name  one  or  more  foreign  nations  or  Indian  tribes., 
or  both.,  as  the  case  may  be);  and  that  the  description  and  fac-similcs 
jresented  for  record  truly  represent  the  trade-mark  sought  to  be  registered. 

A.  B. 
Sworn  and  subscribed  before  me,  a  ,  this         day  of  ,  18     . 

G.  H.,  Notary  Public. 

PRINTS  AND  LABELS. 

By  an  Act  of  Congress,  approved  June  18,  1874  (18  Statutes 
at  Large,  p.  ']'^)^  provision  is  made  for  the  registry  of  prints 
and  labels  in  the  Patent  Office. 

For  this  purpose  these  terms  are  construed  as  synonymous, 
and  are  defined  as  any  device,  picture,  word  or  words,  figure  or 
figures  (not  a  trade-mark),  impressed  or  stamped  directly  upon 
the  articles  of  manufacture,  or  upon  a  slip  or  piece  of  paper  or 
other  material,  to  be  attached  in  any  manner  to  manufactured 
articles,  or  to  bottles,  boxes,  or  packages  containing  them,  to 
indicate  the  contents  of  the  package,  the  name  of  the  manu- 
facturer, or  the  place  of  manufacture,  the  Cjuality  of  goods, 
directions  for  use,  etc. 

It  has  been  held  that  the  application  for  registry  must  be 
made  before  the  print  or  label  is  actually  used. 

The  application  must  be  accompanied  by  five  copies  of  the 
print  or  label,  and  the  registry  fee  of  six  dollars  must  be  paid 
at  the  time  of  filing. 

Form  of  Application  for  Eegistration  of  Prints  and  Labels. 
To  THE  Commissioner  of  Patents  : 

The  undersigned,  A.  B.  of  ,  and  a  citizen  of  the  United  States  (or 

resident  therein,  as  the  case  may  be),  hereby  furnishes  five  copies  of  a  label 
(or  print)  to  be  used  for  ,  of  which  he  is  the  sole  proprietor.     The 

title  of  said  label  (or  print)  is  ,  and  the  said  label  (or  print)  consists 

of  the  words  and  figures  as  follows,  to  wit : 

And  he  hereby  requests  that  the  said  label  (or  print)  be  registered  in 
the  Patent  Office,  in  accordance  with  the  Act  of  Congress  to  that  effect, 
approved  June  18,  1874.  A.  B.,  Proprietor. 

The  certificate  of  registration  will  continue  in  force  for 
twenty-eight  years. 

The  benefits  of  this  act  were  originally  confined  to  citizens 
or  residents  of  the  United  States  ;  but  have  been  extended  by 
treaties  to  British,  German,  Italian,  and  Belgian  subjects. 


696  THE  LAW  OF  COPYRIGHT. 

CHAPTER  XXXIV. 
THE  LAW  OF  COPYRIGHT. 

The  law  now  in  force  in  the  United  States  is  as  follows  : 

Section  4948.  All  records  and  other  things  relating  to  copyrights  and 
required  by  law  to  be  preserved,  shall  be  under  the  control  of  the  Librarian  c£ 
Congress,  and  kept  and  preserved  in  the  Library  of  Congress  ;  and  the 
librarian  of  Congress  shall  have  t'le  immediate  care  and  supervision  thereof, 
and,  under  the  supervision  of  the  Joint  Committee  of  Congress  on  the 
Library,  shall  perform  all  acts  and  duties  required  by  law  touching  copy- 
rights. 

Sec.  4949.  The  seal  provided  for  the  office  of  the  librarian  of  Congress 
shall  be  the  seal  thereof,  and  by  it  all  records  and  papers  issued  from  the 
office,  and  to  be  used  in  evidence,  shall  be  authenticated. 

Sec.  4950.  The  librarian  of  Congress  shall  give  a  bond,  with  sureties, 
to  the  Treasurer  of  the  United  States,  in  the  sum  of  five  thousand  dollars, 
with  the  condition  that  he  will  render  to  the  proper  officers  of  the  Treasury 
a  true  account  of  all  moneys  received  by  virtue  of  his  office. 

Sec.  4951.  The  librarian  of  Congress  shall  make  an  annual  report  to 
Congress  of  the  number  and  description  of  copyright  pubhcations  for  which 
entries  have  been  made  during  the  year. 

Sec.  4952.  Any  citizen  of  the  United  States,  or  resident  therein,  wh.> 
shall  be  the  author,  inventor,  designer,  or  proprietor  of  any  book,  map, 
chart,  dramatic  or  musical  composition,  engraving,  cut,  print,  photograph,  or 
negative  thereof,  or  of  a  painting,  drawing,  chromo,  statue,  statuary,  and  of 
models  or  designs  intended  to  be  perfected  as  works  of  the  fine  arts,  and 
the  executors,  administrators,  or  assigns  of  any  such  person,  shall,  upon 
complying  with  the  provisions  of  this  chapter,  have  the  sole  liberty  of  print- 
ing, reprinting,  publishing,  completing,  copying,  executing,  finishing,  and 
vending  the  same  ;  and,  in  the  case  of  a  dramatic  composition,  of  publicly 
performing  or  representing  it,  or  causing  it  to  be  performed  or  represented 
by  others.  And  authors  may  reserve  the  right  to  dramatize  or  translate 
their  own  works. 

Sec.  4953.  Copyrights  shall  be  granted  f^r  the  term  of  twenty-eight 
years  from  the  time  of  recording  the  title  thereof,  in  the  manner  hereinafter 
directed. 

Sec.  4954.  The  au;hor,  inventor,  or  designer,  if  he  be  still  living  and  a 
citizen  of  the  United  States  or  resident  therein,  or  his  widow  or  children  if 
he  be  dead,  shall  have  the  same  exclusive  right  continued  for  the  further 
term  of  fourteen  years,  upon  recording  the  title  of  the  work  or  description 
of  the  article  so  secured  a  second  time,  and  complying  with  all  other  regulr» 
tions  in  regard  to  original  copyrights,  within  six  months  before  the  expiration 
of  the  first  term.  And  such  person  shall,  within  two  months  from  tlie  date 
of  said  renewal,  cause  a  copy  of  the  record  thereof  to  be  published  in  one 
or  more  newspapers,  printed  in  the  United  States,  for  the  space  of  four 
weeks. 


THE  LAW  OF  COPYRIGHT. 


697 


Sec.  4955.  Copyrights  shall  be  assignable  in  law  by  any  instrument  of 
writing,  and  such  assignment  shall  be  recorded  in  the  office  of  the  lilirarian 
of  Congress  within  sixty  days  after  its  execution  ;  in  default  of  which  it 
shall  be  void  as  against  any  subsequent  purch  iscr  or  mcrlgagee  for  a 
valuable  consideration,  without  notice. 

Sec.  4956.  No  person  shall  be  entitled  to  a  copyright  unless  he  shall, 
before  publication,  deliver  at  the  office  of  the  librarian  of  Congress,  of 
deposit  in  the  mail  addressed  to  the  librarian  of  Con;_rcss,  at  Washington, 
District  of  Columbia,  a  printed  copy  of  the  title  of  the  book  or  other  article, 
or  a  description  of  the  painting,  drawing,  cliromo,  statue,  statuar)-,  or  model 
or  design  for  a  work  of  the  fine  arts,  fcr  which  he  desires  a  copyright ;  nor 
unless  he  shall  also,  within  ten  days  from  the  publication  thereof,  dehvcr  at 
the  office  of  the  librarian  of  Congress,  or  deposit  in  the  mail  addressed  to 
the  librarian  of  Congress,  at  Washington,  District  of  Columbia,  two  copies 
of  such  copyright  book  or  other  article,  or,  ia  case  of  a  painting,  drawing, 
statue,  statuar\',  model  or  design  for  a  work  cf  the  fine  arts,  a  photograph 
of  the  same. 

Sec.  4957.  The  librarian  cf  Congress  shall  record  the  name  of  such 
copyright  book,  or  other  article,  forthwith  in  a  book  to  be  kept  for  that 
purpose,  in  the  words  following:  '"Library  of  Congress,  to  wit:  Be  it 
remembered  that  on  the day  of , ,  A.  B.,  of ,  hath  deposi- 
ted in  this  office  the  title  of  a  book,  (map,  chart,  or  otherwise,  as  the  case 
may  be,  or  description  of  the  article,)  the  title  or  description  of  .which  is  in 
tlie  following  words,  to  wit:  (here  insert  the  title  or  description,)  the  right 
whereof  he  claims  as  autlior,  (originator,  or  proprietor,  as  the  case  may  be,) 
in  conformity  with  the  laws  of  the  United  States  respecting  copvrights. 
C.  D.,  Librarian  of  Congress."  And  he  shall  give  a  copy  of  the  title  or 
description,  under  the  seal  of  the  hbrarian  of  Congress,  to  the  proprietor 
whenever  he  shall  require  it. 

Sec.  4958.  Tlie  librarian  of  Congress  shall  receive  from  the  persons  to 
whom  the  services  designated  are  rendered,  the  following  fees  :  i.  For  record- 
ing the  title  or  description  of  any  copyright  book  or  other  article,  fifty  cents. 
2.  For  every  copy  under  seal  of  such  record  actually  given  to  the  person 
claiming  the  copyright,  or  his  assigns,  fifty  cents.  3.  For  recording  and 
certifying  any  instrument  of  writing  for  the  assignment  of  a  copyright,  one 
dollar.  4.  For  every  copy  of  an  assignment,  one  dollar.  All  fees  so  received 
shall  be  paid  into  the  treasury  of  the  United  States. 

Sec.  4959.  The  proprietor  of  every  copyright  book  or  other  article  shal 
deliver  at  the  office  of  the  librarian  of  Congress,  or  deposit  in  the  mai 
addressed  to  the  librarian  of  Congress,  at  Washington,  District  of  Columbia, 
within  ten  days  after  its  publication,  two  complete  printed  copies  thereof,  of 
the  best  edition  'ssued.  or  description  or  photograph  of  such  article  as  here- 
inbefore required,  and  a  copy  of  every  subsequent  edition  wherein  any 
substantial  changes  shall  be  made. 

Sec.  4960.     For  every  failure  on  the  part  of  the  proprietor  of  any  copy 


09S 


THE  LAW  OF  COPYRIGHT. 


right  to  deliver,  or  deposit  in  the  mail,  either  of  the  published  copies,  or 
'description,  or  photograph,  required  by  Sections  4956  and  4959,  the  pro- 
prietor of  the  copyright  shall  be  liable  to  a  penalty  of  twenty-five  dollars,  to 
(be  recovered  by  the  librarian  of  Congress,  in  the  name  of  the  United  States, 
in  an  action  in  the  nature  of  an  action  of  debt,  in  any  district  court  of  the 
United  States  within  the  jurisdiction  of  which  the  delinquent  may  reside  or 
be  found. 

Sec.  4961.  The  postmaster  to  whom  £uch  copyright  book,  title,  or  other 
article  is  delivered,  shall,  if  requested,  give  a  receipt  therefor;  and  when  so 
delivered  he  shall  mail  it  to  its  destination. 

Sec.  4962.  No  person  shall  maintain  an  action  for  the  infringement  of 
his  copyright  unless  he  shall  give  notice  thereof  by  inserting  in  the  several 
copies  of  every  edition  published,  on  the  title-page  or  the  page  immediately 
following,  if  it  be  a  book ;  or  if  a  map,  chart,  musical  composition,  print, 
cut,  engraving,  photograph,  painting,  drawing,  chromo,  statue,  statuary,  or 
model  or  design  intended  to  be  perfected  and  completed  as  a  work  of  the  fine 
arts,  by  inscribing  upon  some  visible  por>ion  tliereof,  or  of  the  substance  on 
which    the    same    shall   be    mounted,   the   following    words,  viz. :   '"  Entered 

according  to  act  of  Congress,  in  the  year  ■ ,  by  A.  B.,  in  the  office  of 

the  librarian  of  Congress,  at  Washington;"  or,  at  his  option,  the  word 
"Copyright,"  together  with  the  year  the  copyright  was  entered,  and  the 
name  of  the  party  by  whom  it  was  taken  out,  thus:  "Copyright,  18 — ,  Ly 
A.  B."     (For  additional  copyright  matter,  see  amendment  on  page  700.) 

Sec.  4953.  Every  person  who  shall  insert  or  impress  such  notice, 
or  words  of  the  snme  purport,  in  or  upon  any  book,  map,  chart,  musical 
composition,  print,  cut,  engraving,  or  photograph,  or  other  article,  for  which 
he  has  not  obtained  a  coiryright,  shall  be  liable  to  a  penalty  of  one  hundred 
dollars,  recoverable  cne-ha'f  for  the  person  who  shall  sue  for  such  penalty, 
and  one-half  for  the  u.e  of  the  United  States. 

Sec.  4964.  Every  per , on  who,  after  the  rerording  of  the  title  of  any 
book  as  provided  by  this  chapter,  shall  within  the  term  limited,  and  without 
the  consent  of  the  proprietor  of  the  copyriglit  first  obtained  in  writing, 
signed  in  the  presence  of  two  or  more  witnesses,  print,  publish,  or  import 
or,  knowing  the  same  to  be  so  printed,  published,  or  iinported,  shall  sell  or 
expose  to  sale  any  copy  of  such  book,  shall  forfeit  every  copy  thereof  to 
such  proprietor,  and  shall  also  forfeit  and  pay  such  damages  as  may  be 
recovered  in  a  civil  action  by  such  proprietor  in  any  court  of  competent 
jurisdiction. 

Sec.  4965.  If  any  person,  after  the  recording  of  the  title  of  any  map 
chart,  musical  composition,  print,  cut,  engraving,  photograph,  or  chromo,  or 
of  the  description  of  any  piinti ng,  drawing,  statue,  statuary,  or  model,  or 
design  intended  to  be  perfected  and  executed  as  a  work  of  the  fine  arts,  as 
provided  by  th's  chapter,  shall,  within  the  term  limited,  and  without  the  con- 
sent of  the  proprietor  of  the  copyright  first  obtained  in  writing,  signed  in 
presence  ot  two  or  more  witnesses,  engrave,  etch,  work,  copy,  print,  pub- 


THE  LAW  OF  COPYRIGHT. 


699 


lish,  or  import,  either  in  wliole  or  in  part,  or  by  varying  the  main  design 
vviih  intent  to  evade  ihe  law,  or,  knowing  ihe  same  to  be  so  printed,  pub- 
J  shed,  or  imported,  shall  sell  or  expose  to  sale  any  copy  of  such  map  or 
ether  article,  as  aforesaid,  he  shall  forfeit  to  the  proprietor  all  the  plates  on 
which  the  same  shall  be  copied,  and  every  sheet  thereof,  either  copied  or 
printed,  and  shall  farther  forfeit  one  dollar  for  every  sheet  of  the  same 
found  in  his  possession,  either  printing,  printed,  copied,  published,  imported, 
or  exposed  for  sale ;  and  in  case  of  a  painting,  statue,  or  statuary,  he  shall 
forfeit  ten  dollars  for  every  copy  of  the  same  in  his  possession,  or  by  him 
sold  or  exposed  for  sale  ;  one-half  thereof  to  the  proprietor  and  the  other 
half  to  the  use  of  the  United  States. 

Sec.  4966.  Any  person  publicly  performing  or  representing  anv  dramatic 
composition  for  which  a  copyright  has  been  obtained,  without  the  consent  of 
the  proprietor  thereof,  or  his  heirs  or  assigns,  shall  be  Hable  for  damages 
therefor ;  such  damages  in  all  cases  to  be  assessed  at  such  sum,  not  less 
than  one  hundred  dollars  for  the  first,  and  fifty  dollars  for  every  subsequent 
performance,  as  to  the  court  shall  appear  to  be  just. 

Sec.  4967.  Every  person  who  shall  print  or  publish  any  manuscript 
whatever,  without  the  consent  of  the  author  or  proprietor  first  obtained,  (if 
such  author  or  proprietor  is  a  citizen  of  the  United  States,  or  resident 
therein,)  shall  be  liable  to  the  author  or  proprietor  for  all  damages  occasioned 
by  such  injury. 

Sec.  4968,  No  action  shall  be  maintained  in  any  case  of  forfeiture  or 
penalty  under  the  copyright  laws,  unless  the  same  is  commenced  v.-ithin  two 
years  after  the  cause  of  action  has  arisen. 

Sec.  4969.  In  all  actions  arising  under  the  laws  respecting  copyrights 
the  defendant  may  plead  the  general  issue,  and  give  the  special  matter  in 
evidence. 

Sec.  4970.  The  circuit  courts,  and  district  courts  having  the  jurisdic- 
tion of  circuit  courts,  shall  have  power,  upon  bill  in  equity,  filed  by  any 
party  aggrieved,  to  grant  injunctions  to  prevent  the  violation  of  any  right 
secured  by  the  laws  respecting  copyrights,  according  to  the  course  and 
principles  of  courts  of  equity,  on  such  terms  as  the  court  may  deem  reason- 
able. 

Sec.  4971.  Nothing  in  this  chapter  shall  be  construed  to  prohibit  the 
printing,  publishing,  importation,  or  sale  of  any  book,  map,  chart,  dramatic 
or  musical  composition,  print,  cut,  engraving,  or  photograph,  written,  com- 
posed, or  m.ade  by  any  person  not  a  citizen  of  the  United  States  nor  resident 
therein. 

By  the  Act  of  June  18,  1874,  it  is  provided  that  in  the  construction 
of  this  act,  the  words  "engraving,"  "cut,"  and  "print,"  shall  be  applied 
only  to  pictorial  illustrations  or  works  connected  with  the  fine  arts, 
and  no  prints  or  labels  designed  to  be  used  for  any  other  articles  of 
manufacture  shall  be  .entered  under  the  copyright  law,  but  may  be  regis- 
tered in  the  Patent  Office.     And  the  Commissioner  of  Patents  is  hereby 


700 


THE  LAW  OF  COPYRIGHT. 


charged  with  the  supervision  and  control  of  tlie  entry  or  registry  of  such 
prints  or  labels,  in  conformity  with  the  regulations  provided  by  law  as  to 
copyright  of  prints,  except  that  there  shall  be  paid  for  recording  the  title  of 
any  print  or  label,  not  a  trade-mark,  six  dollars,  which  shall  cover  the  expense 
of  furnishing  a  copy  of  the  record,  under  the  seal  of  the  Commissioner  of 
Patents,  to  the  party  entering  the  same. 

Sec.  4962,  as  amended  by  the  Act  of  Aug.  i,  1S82,  provides  "that  manu- 
facturers of  designs  for  molded  decorative  articles,  tiles,  plaques,  or  articles 
of  pottery  or  metal  subject  to  copyright,  may  put  the  copyright  mark  pre- 
scribed by  R.  S.,  §  4962,  and  acts  additional  thereto,  upon  the  back  or  bottom 
of  such  aiticles,  or  in  such  other  place  upon  them  as  it  has  heretofore  been 
usual  for  manufacturers  of  such  articles  to  employ  for  the  placing  of  manu- 
facturers', merchants',  or  trade-marks  thereon." 

The  Copyright  Law  of  the  Dominion  of  Canada  closely 
resembles  that  of  the  United  States. 

A  copyright  may  be  taken  out  by  "any  person  resident  in 
Canada,  or  any  person  being  a  British  subject,  and  resident  in 
Great  Britain  or  Ireland."  The  book  must  be  printed  and  pub- 
lished in  Canada. 

I  subjoin  two  forms  of  agreement  between  authors  holding 
copyrights,  with  publishers,  for  the  publication  of  the  book. 
I  add  a  form  of  assignment  of  copyright. 

(260.) 

Agreement  between  Author  and.  Publisher.— Short  Form. 

This  Agreement,  Made  this  day  of  in  the  year 

iS  by  and  between  {na?iie  of  author)  and  {name  of  pttblisher)  witnesseth  as 
follows : 

The  said  {jiaine  of  aiitJior)  being  now  preparing  a  Vv'ork,  to  be  called 
{or  on  the  subject  of  )  to  be  in  volume     hereby 

agrees  and  promises  to  complete  the  same  for  the  press  as  rapidly  as  prac- 
ticable, and  to  sell  to  the  same  {name  of  the pjtblislier)  for  tlie  sum  of 
dollars,  to  be  paid  as  hereinafter  mentioned,  the  exclusive  right  of  printing, 
publishing,  and  selling  the  first  edition  thereof,  to  consist  of 
copies.     The  copyright  of  said  work  to  be  secured  and  retained  by  said 
{name  of  aiitJior)  as  author  and  proprietor. 

And  the  said  {fiame  of  publisher)  hereby  agrees  and  promises  to  publish 
said  edition  of  copies,  and  to  pay  to  said  (name  of  author)  the 

said  sum  of  dollars,  by  their  promissory,  negotiable  notes,  pay- 

able at  average  credit  of  months  from  tlie  day  of  publication  of 


A  GREEMENT  BE  T\  I  'EEX  A  UTHOR  A  XD  P  UBLISHERS.     70 1 

said  edition  ;  and  also  to  give  him  copies  of  said  work,  for  pi 

scntation. 

Witness  our  hands,  in  duplicate,  this  day  of 

{SignaUn-c  of  author.) 
{Signatin-e  of  publisher.) 

(261.) 
Agreement  between  Author  and  Publishers.— Fuller  Form. 

Articles  of  Agreement,  Made  this  daj-  of 

A.D.  18       by  and  between  of  the  first  part,  and 

of  State  cf  booksellers  and  publishers,  of  the  sec- 

ond part,  witnesseth,  That  the  said  {name  of  the  author)  in  consideration  of 
the  a<ireements  of  the  said  {name  of  publishers)  hereinafter  contained, 
hereby  ao-rees  with  them  and  their  representatives  and  assigns  that  he  will 
deliver  to  them  on  or  before  the  day  of  A.D.  18 

the  manuscript  of  a  book  now  in  course  of  preparation  by  liim,  to  be  entitled 
said  manuscript  to  be  properly  prepared  for  the  press,  and  to 
be  sufficient  in  amount  for  volume     of  not  less  than 

pao-es,  similar  to  those  of  that  he  will  secure  in  his  own  name 

a  o-ood  and  valid  copyright  thereof  for  the  United  States,  and  any  renewals  or 
extensions  of  such  copyright  tc  whic  1  he  may  hereafter  be  entitled,  and  will 
defend  the  same  from  all  infringements  and  adverse  claims,  and  will  save 
the  said  and  their  representatives  and  assigns,  harmless  and 

indemnified  from  all  such  infringements  and  claims,  and  from  all  damage, 
costs,  and  expenses  arising  to  them  by  reason  th.ereof ;  that  he  will  license 
and  allow  the  said  and  their  representatives  and  assigns,  but 

no  other  party  or  parties,  to  print,  publish,  and  sell  the  aforesaid  book,  and 
any  revisions  of  the  same,  during  the  continuance  of  any  copyrights  or 
renewals  thereof  which  he  may  obtain  therefor;  provided,  however,  that  the 
said  and  their  representatives  and  assigns  shall  in  substantial  good 

faith  keep  and  perform  their  agreements  hereinafter  contained  ;  and  that  dur- 
ing the  continuance  of  the  exclusive  rights  hereby  granted,  he  will  revise  said 
book  as  occasion  may  require,  and  will  with  all  reasonable  dihgence  and 
speed  superintend  in  the  usual  manner  of  authors  the  printing  of  all  editions 
thereof;  and  will  not  prepare,  edit,  or  cause  to  be  published,  in  his  name  or 
otherwise,  anything  which  may  injure  or  interfere  with  the  sale  of  the  afore- 
said book. 

And  the  said  {name  of  the  publishers)m  consideration  of  the  foregoing 
agreements  of  the  said  author  of  the  aforesaid  book,  hereby  agree  on  their 
part  that  they  will,  upon  the  delivery  to  them  of  the  manuscript  thereof  as 
aforesaid,  proceed  at  rnc2  to  print  and  publish  an  edition  of  said  book,  of  at 
(east  CO]  ies,  of  which  they  will  deliver  to  the  said 

author  for  his  own  use  without  charge ;  that  they  will  subsequently,  from 
time  to  time,  during  the  continuance  of  their  enjoyment  of  the  exclusive 
rights  herein  granted  them,  print  and  publish  such  other  editions  of  said 


;02  THE  LAW  OF  COrVRIGHT. 

book  as  the  demand  for  the  same  may  require,  copies  of  each 

of  which  they  will  deliver  to  said  author  for  his  own  use  without  charge ; 
that  they  will  use  their  best  exertions  to  secure  the  speedy  sale  of  all  such 
editions  published  by  them  as  aforesaid ;  and  that,  upon  the  publication  of 
each  and  every  edition  of  said  book,  they  will  pay  unto  the  said  author,  or 
his  representatives  or  assigns,  a  sum  ecjual  to  upon  each  and 

every  copy  of  which  said  edition  shall  consist  (excepting,  however,  said  copies 
to  be  given  to  said  author  as  aforesaid,  and  such  other  copies  as  may  be 
used  for  presentation  to  editors  and  others  for  the  purpose  of  obtaining 
reviews  and  notices,  or  otherwise  to  promote  the  sale  of  said  book),  which 
said  sum  shall  be  paid  as  follows  {state  tJic  iiianner  and  times  of  payment,  as 
by  cash  or  notes)  but  from  any  sum  so  to  be  paid  as  aforesaid  shall  first  be 
deducted  the  cost  of  any  alterations  or  corrections,  exceeding  ten  per  cent. 
of  the  cost  of  first  setting  up  the  type,  made  by  the  said  author  in  said  book 
after  the  portion  altered  or  corrected  is  in  type. 

In  Witness  Wliereof,  The  said  parties  have  hereto,  and  to  another  instru 
ment  of  like  tenor,  set  their  hands  the  day  and  year  first  above  written. 

{Sii/natttrc  of  author.) 
{Signature  of  publishers i) 
(  Witnesses^ 

(262.) 

An  Assignment  of  a  Copyright. 

To  all  whom  it  may  Concern  :  Whereas  I,  {na7ne  of  assignor)  of 
\n  the  County  of  and  State  of  did  obtain  a  copj-- 

right  from  the  United  States  for  a  work  entitled  and  the 

certificate  of  said  copyright  bears  date  A.D.  eighteen  hundred 

and 

Now  this  Deed  Witnesseth,  That  for  a  valuable  consideration,  viz. : 
to  me  in  hand  paid,  the  receipt  of  which  is  hereby  acknowl- 
edged, I  have  assigned,  sold,'  and  set  over,  and  by  these  presents  do  assign, 
sell,  and  set  over  unto  the  said  {name  of  assignee)  all  the  right,  title,  and 
interest  I  have  in  the  above  book  {or  design,  etc. )  as  secured  to  me  by  said 
copyright.  The  same  to  be  held  and  enjoyed  by  the  said  {najne  of  assignee)  for 
his  own  use  and  behoof,  and  for  the  use  and  behoof  of  his  legal  representatives, 
to  the  full  end  of  the  term  for  which  said  copyright  was  issued,  as  fully  and 
entirely  as  the  same  would  have  been  held  and  enjoyed  by  me  had  this 
assignment  and  sale  not  been  made. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
seal,  this  day  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and 

{Signature.)    {Seal.) 

Sealed  atid  Delivered  in  Presence  of 


RECOVERY  AND  COLLECT/OX  OF  DEBTS,  ^03 


CHAPTER  XXXV. 

MEANS   PROVIDED  FOR  THE  RECOVERY  AND   COLLECTION  OF 

DEBTS. 

1.  Arrest  and  Imprisonment. — In  many  States,  no  person 
can  be  arrested  or  imprisoned  for  debt.  In  California  no  female, 
and  in  Louisiana  no  female,  and  no  person  who  has  not  a 
domicil  in  the  State,  and  in  Ohio  no  female,  nor  any  officer  or 
soldier  of  the  Revolutionary  army,  can  be  arrested  or  impris- 
oned for  debt.  In  all  the  States,  the  intention  of  the  law  is 
to  limit  imprisonment  to  those  cases  in  which  either  fraud 
was  committed  in  the  contraction  of  the  debt,  or  the  debtor 
intends  to  abscond  out  of  the  reach  of  process.  The  provisions  to 
effect  this  are  very  various.  Generally,  the  plaintiff  must  file 
in  the  clerk's  office,  or  indorse  upon  the  wTit,  an  affidavit  of  the 
facts  on  which  he  grounds  the  right  of  arrest.  In  some  of  the 
States,  provision  is  made  for  the  imprisonment  on  execution  of 
a  debtor  who  can  be  found  to  possess,  and  refuses  to  surrender, 
property  or  interest,  real  or  personal,  which  might  be  made 
available  for  the  payment  of  his  debts. 

2.  The  Trustee  Process. — The  trustee  process,  or  garnishee 
process,  or  process  of  foreign  attachment, — by  all  which  names 
it  is  known, — is  now  nearly  or  quite  universal.  It  is  substan- 
tially this  :  A  owes  B  a  debt ;  but  A  has  no  property  in  his 
hands  or  possession  which  B  can  get  at ;  but  A  has  deposited  in 
the  hands  of  C,  goods,  or  property,  or  credits  of  some  kind,  or  A 
has  a  valid  claim  against  C  for  services  rendered,  or  money 
loaned,  or  goods  sold,  or  something  else  ;  and  this  B  gets  by 
suing  A,  not  with  a  common  w-rit,  but  with  a  trustee  writ,  so 
called,  in  which  he  declares  that  C  is  the  trustee  of  A,  for  prop- 
erty, etc.  ;  and  on  this  writ,  if  B  recovers  payment  against  A, 
he  will  have  an  execution  against  all  A's  property  in  the  hands 
of  C,  and  all  A's  valid  demands  against  C.  But  C,  when  noti- 
fied, may  come  into  court,  and,  in  answer  to  all  questions  put 
to  him,  declare  that  he  (C)  has  no  property  in  his  hands  belong- 
ing to  A,  and  that  he  does  not  owe  A  anything.  And  then  the 
plaintiff  may  shape  the  questions  as  he  pleases,  to  draw  out  the 
truth. 


704  RECOVERY  AND  COLLECTION  OF  DEBTS. 

No  one  is  adjudged  trustee,  or  made  to  pay  to  the  creditor 
the  debt  due  to  the  debtor,  if  he  has^  given  a  negotiable  note  for 
it,  because  he  might  have  to  pay  it  again  to  an  honest  indorsee. 
Nor  if  the  debt  is  not  certainly  due;  nor,  generally,  if  it  is  due 
from  the  trustee  in  any  official  capacity,  which  will  require  him 
to  account  over  for  the  money  in  his  hands  ;  nor  if  the  debtor 
has  recovered  a  judgment  against  the  trustee,  on  which  execu- 
tion may  issue. 

The  laws  of  the  British  Provinces  for  the  collection  of  debts 
are  similar  in  substance  and  purpose  to  those  of  the  United 
States,  with  similar  provisions  against  abuse  or  oppression. 

3.  The  Homestead. — In  most  of  the  States,  a  homestead  is 
protected  from  creditors,  and  exempted  from  all  attachment  or 
execution,  excepting  in  some  States  for  taxes,  or  wages  of  labor 
■«>  a  certain  amount. 

Various  provisions  are  made  in  each  of  these  States  to  com 
bine  a  due  protection  of  the  creditor  with  proper  prevention  of 
fraud.  The  most  common  means  are  by  requiring  that  "  the 
homestead"  should  be  distinctly  defined  and  set  apart,  and  in 
many  cases  by  the  additional  requirement,  that  the  description 
and  location  of  it  should  be  put  on  public  record. 

In  all  the  States  there  are  also  exemption  laws.  These  pro 
vide  very  generally  that  bed  and  bedding  and  other  necessary 
furniture,  needful  clothing,  a  Bible  and  school-books,  and  a  cer- 
tain amount  of  food  and  fuel,  shall  not  be  taken  on  attachment 
or  execution.  In  some  States,  the  tools  of  a  trade,  the  uniform, 
arms,  and  equipments  of  soldiers  or  officers  in  the  militia,  the 
family  burying-vault  and  gravestones,  a  team  or  yoke  of  oxen, 
bees  with  their  hives  and  honey,  a  boat  for  fishing,  etc.,  are 
exempted.  These  statutes  often  enumerate  the  articles  ex- 
empted quite  minutely,  and  then  add,  that  necessary  articles  to 
a  certain  amount  of  value,  usually  one  or  two  hundred  dollars, 
are  also  exempted. 

We  give  annexed  to  this  chapter  an  Abstract  of  the  Laws 
of  all  the  States  relating  to  the  collection  of  debts. 


ABSTRACT  OF   THE   COLLECTION  OF    DEBTS.      705 

ABSTRACT  OF  LAWS  RELATING  TO  THE  COLLEC- 
TION OF  DEBTS. 

INCLUDING    ACTIONS,    ATTACHMENT,   ARREST,    GARNISHMENT, 
JUDGMENT,  EXEMPTIONS,  AND  HOMESTEAD. 

ALABAMA.  —  Actions.  Civil  actions  are  begun  by  service  of  summons, 
issued  by  the  clerk  of  court,  and  accompanied  by  the  complaint  of  the  plaintiff.  All 
actions  on  contracts  for  the  payment  of  money  may  be  joined  in  one. 

Attachment  may  be  levied  on  any  real  estate,  or  personal  property,  or  by  garn- 
ishment. It  may  issue,  (i)  to  enforce  the  collection  of  any  debt,  (2)  for  any  money 
demand,  (3)  to  recover  damages  for  the  breach  of  any  contract,  or,  (4)  when  the 
action  sounds  in  damages  merely  on  affidavit  by  the  plaintiff  that  the  defendant 
resides  out  of  the  State,  or  has  absconded,  or  has  secreted  himself,  or  is  about  to 
remove,  or  has  or  is  about  to  dispose  of  his  property  fraudulently.  Atiidavit  must 
set  forth  amount  of  debt  or  demand,  that  it  is  justly  due  and  that  attachment  is  not 
for  purpose  of  harassing  defendant.  Plaintiff  must  also  give  bond  to  defendant  to 
prosecute  attachment,  to  effect  and  pay  all  damages  sustained  by  wrongful  suing  out 
of  attachment. 

Arrest  is  not  allowed  under  the  constitution. 

Garnishment.  The  judgment  creditor  in  any  action  may  obtain  a  process  of 
garnishment  against  any  person  supposed  to  be  indebted  tto  the  defendant,  and  the 
plaintiff  may  obtain  such  process  when  a  summons  and  complaint  have  issued  in  any 
case. 

Judgment  is  a  lien  for  ten  years,  after  filing  a  certificate  of  the  clerk  of  the  court 
in  the  office  of  the  judge  of  probate  of  the  county  where  it  was  obtained. 

Stay  Law.  In  actions  before  a  justice  of  the  peace  defendant  may  at  any  time 
before  execution  is  issued,  stay  the  issue  thereof  thirty  days,  if  the  judgment  be  less 
than  twenty  dollars,  or  sixty  days  if  over  twenty  dollars,  by  giving  a  bond  with 
surety  in  double  the  amount  of  the  judgment.  In  cases  in  the  Circuit  Court  execu- 
tion can  be  stayed  only  by  appeal  to  the  Supreme  Court  and  giving  bond. 

Exemptio.ns.  Personal  property,  to  be  selected  by  the  debtor,  to  the  value  of  one 
thousand  dollars,  is  exempt  from  sale  on  execution,  or  other  process  of  court,  also  the 
homestead  of  the  debtor,  not  exceeding  one  hundred  and  sixty  acres  and  not  exceec- 
ing  two  thousand  dollars  in  value,  not  in  any  city,  town,  or  village,  or  in  lieu  thereof, 
any  lot  in  any  city,  town,  or  village  with  the  buildings  thereon  owned  and  occupied 
by  the  debtor,  not  exceeding  two  thousand  dollars  in  value.  Also  are  exempt,  lots 
in  cemeteries,  pew  or  seat  in  church,  proper  wearing  apparel,  family  portraits,  books 
used  in  the  family,  and  the  wages  or  salaries  of  laborers  or  employes,  for  personal 
service,  not  exceeding  twenty-five  dollars  per  month. 

ARIZONA.  —  Actions.  There  is  but  one  form  of  civil  action.  This  is  com- 
menced by  filing  a  complaint  with  the  clerk  of  the  court  and  taking  out  a  summons. 
Actions  must  be  brought  in  the  name  of  the  real  party  in  interest.  If  the  plaintiff  be 
a  non-resident,  defendant  may  require  security  for  costs. 

Attachment.  Will  issue  on  filing  with  the  clerk  an  affidavit  setting  forth  that 
defendant  is  justly  indebted  to  plaintiff  and  the  amount,  also  that  defendant  is  a  non- 
resident or  a  foreign  corporation,  or  that  he  is  about  to  remove  permanently  from  the 
territory,  and  has  refused  to  pay  or  secure  the  debt,  or  that  he  secretes  himself  so 
45 


yoG 


ABSTRACT  OF   THE    COLLECTION  OF  DEBTS. 


that  process  cannot  be  served  on  him,  or  that  he  has  secreted  or  is  about  to  secrete 
his  property  for  the  purpose  of  defrauding  creditors,  or  that  he  is  about  to  remove 
his  property  from  the  territory  without  leaving  enough  to  satisfy  his  debts,  or  from 
the  county  to  defraud  creditors,  or  that  he  has  disposed  or  is  about  to  dispose  of  his 
property  to  defraud  creditors,  or  that  he  is  about  to  convert  his  property  into  money 
to  place  it  beyond  reach  of  creditors,  or  that  the  debt  was  due  for  property 
obtained  under  false  pretences,  and  also  that  the  attachment  is  not  sued  out  to  injure 
or  harass  defendant,  and  that  plaintiff  will  probably  lose  his  debt  unless  attachment 
issues.  Plaintiff  must  give  bond  with  sureties  to  prosecute  suit  and  for  damages 
and  costs  in  case  attachment  was  wrongfully  obtained. 

Arrest  —  not  authorized. 

Garnishment.  Writ  issues  on  plaintiff's  giving  bond  with  two  sureties  to  prose- 
cute suit  to  effect  and  to  pay  all  costs  and  damages  in  case  writ  is  wrongfully  sued 
out,  and  filing  affidavit  showing  either  that  an  original  attachment  has  been  issued, 
or  that  debt  is  just,  due,  and  unpaid  and  that  defendant  has  not  property  sufficient  to 
satisfy  debt,  and  that  the  garnishment  is  not  sued  out  to  injure  either  defendant  or 
garnishee ;  or  that  plaintiff  has  a  judgment  and  that  defendant  has  not  property  to 
satisfy  it ;  and  further,  that  the  garnishee  is  indebted  to  defendant  or  has  effects  of 
defendant,  or  that  garnishee  is  a  joint  stock  company  and  defendant  owns  shares  or 
some  interest  therein. 

Judgment  is  a  lien  for  two  years  on  all  real  estate  owned  by  the  defendant  in  the 
county  where  the  judgment  is  rendered  or  where  a  transcript  of  the  same  has  been 
filed. 

Stay  Law.     There  is  no  stay  of  execution  except  in  case  of  appeal. 

Exemptions.  To  every  head  of  a  family  a  homestead  not  exceeding  four  thou- 
sand dollars  in  value;  personal  property  to  the  value  of  one  thousand  dollars,  to  be 
selected  by  the  debtor,  and  earnings  for  personal  services  for  thirty  days  preceding  the 
levy. 

ARKANSAS. — Actions.  Forms  of  actions  existing  before  the  adoption  of  the 
code  are  abolished,  and  there  is  now  one  form  of  action  for  private  rights,  called  a 
civil  actio7i.  The  civil  action  is  begun  by  filing  with  the  clerk  of  the  court  a  com- 
plaint and  causing  a  summons  to  issue  thereon.  Several  causes  of  action  may  be 
joined  in  the  same  complaint. 

Attachment.  The  plaintiff  may  have  an  attachment  for  the  recovery  of  money, 
including  damages,  when  the  defendant  is  a  non-resident  of  the  State ;  or  has  been 
absent  from  the  State  four  months  ;  or  has  departed  with  intent  to  defraud  his  credit- 
ors; or  has  left  county  to  avoid  service  of  summons,  or  so  conceals  himself  that  sum- 
mons cannot  be  served  on  him,  or  has  removed  his  property  from  the  State,  or  is  about 
to  do  so,  not  leaving  enough  to  satisfy  the  claims  of  creditors  ;  or  has  disposed  of  his 
property,  or  is  about  to  do  so  with  fraudulent  intent  to  cheat,  hinder,  or  delay  his 
creditors.  An  order  of  attachment  is  made  by  the  clerk  of  the  court  on  the  filing  by  the 
plaintiff  of  an  affidavit  showing  the  nature  and  amount  of  the  plaintiff's  claim,  that 
it  is  just,  and  the  existence  of  one  of  the  grounds  of  attachment  above  mentioned,  and 
filing  a  bond  of  indemnity  to  the  defendant. 

Arrest.  The  defendant  in  a  civil  action  may  be  arrested  on  filing  by  the  plaintiff, 
with  the  clerk  of  the  court,  of  an  affidavit  showing  the  nature  of  the  claim,  and  charg- 
ing the  defendant  with  fraud  in  contracting  the  debt,  that  it  is  a  just  claim,  and  the 
amount  expected  to  be  recovered,  and  that  the  afliiant  believes  that  the  defendant  is 


ABSTRACT   OF   THE    COLLECTIOX  OF  DEBTS. 


■07 


about  to  depart  from  the  State,  and  has  concealed  his  property  with  intent  to  defraud 
his  creditors,  or  that  he  has  property  and  is  about  to  depart  from  the  State  without 
iea\-ing  enough  to  satisfy  the  plaintiff's  claim. 

Garnishment.  Process  of  garnishment  may  issue  whenever  the  plaintiff  believes 
that  any  person  is  indebted  to  the  defendant,  or  has  in  his  hands  or  possession  goods 
and  chattels,  moneys,  credits,  or  effects  belonging  to  the  defendant. 

Judgment  rendered  by  the  Circuit  Court  is  a  lien  on  the  real  estate  of  the  defend- 
ant lying  in  the  county  for  which  the  court  is  held,  and  the  lien  continues  for  three 
years. 

Judgment  rendered  by  the  Supreme  Court  or  by  a  justice  of  the  peace  becomes  a 
lien  on  filing  a  transcript  with  the  clerk  of  the  Circuit  Court. 

Stay  Law.  Execution  may  be  stayed  three  months,  when  the  judgment  is  a 
decree  for  money,  by  giving  a  bond  with  good  suret}',  except  in'  actions  against  a  col- 
lecting officer,  attorney,  or  agent,  or  by  a  surety  against  his  principal,  or  in  a  suit 
brought  to  enforce  a  vendor's  or  mortgagee's  lien. 

Exemptions.  Personal  propertj'  of  a  person  unmarried  and  not  the  head  of  a 
family  to  the  value  of  two  hundred  dollars,  in  addition  to  wearing  apparel.  Per- 
sonal property  of  a  person  married  or  the  head  of  a  family  to  the  value  of  five  hun- 
dred dollars,  in  addition  to  wearing  apparel.  The  homestead  of  a  married  man  or  the 
head  of  a  family,  except  on  judgments  for  the  purchase  money,  or  to  enforce  specific 
liens  against  thepropert)%  or  for  debts  due  in  a  fiduciary  capacity.  Such  homestead, 
if  outside  of  a  town  or  village,  shall  consist  of  not  exceeding  one  hundred  and  sixty 
acres  of  land,  with  the  improvements  thereon,  occupied  as  a  residence,  in  all  not 
exceeding  in  value  twenty-five  hundred  dollars,  or  not  less  than  eight)-  acres  without 
regard  to  value.  If  within  a  city,  town,  or  village,  it  shall  consist  of  not  exceeding 
one  acre  of  land  with  improvements,  not  in  all  exceeding  in  value  twenty-five  hun- 
dred dollars,  or  not  less  than  a  quarter  of  an  acre  without  regard  to  value. 

CALIFORNIA. — Actions.  There  is  only  one  form  of  action  for  private  reme- 
dies, which  is  commenced  by  filing  a  complaint,  and  issuing  a  summons  thereon, 
directed  to  the  defendant. 

Attachment.  A  writ  of  attachment  may  issue,  in  actions  on  contracts  for  the 
direct  payment  of  money  made  or  paA'able  in  the  State,  and  not  secured  by  mortgage 
or  otherwise,  or  where  the  security-  has  become  valueless,  and  in  actions  of  contract 
against  a  defendant  residing  out  of  the  State,  on  filing  with  the  clerk  of  the  court  an 
affida\-it  that  the  defendant  is  actually  indebted  to  the  plaintiff,  stating  the  amount 
due,  and  also  that  the  action  is  one  of  those  above  specified,  and  filing  a  bond  of 
indemnit}-  to  the  defendant. 

Arrest.  The  defendant  may  be  arrested  in  an  action  for  the  recovery  of  money 
or  damages,  when  he  is  about  to  leave  the  State  with  intent  to  defraud  his  creditors. 
or  in  an  action  to  recover  possession  of  personal  property  when  the  property  has  been 
fraudulently  concealed  or  disposed  of  and  cannot  be  found,  or  when  the  defendant 
was  guilty  of  fraud  in  contracting  the  debt,  or  of  embezzlement  or  fraudulent  mis- 
application of  money  or  property',  or  of  misconduct  or  neglect  in  office,  or  in  profes- 
sional employment,  or  of  willful  violation  of  duty,  or  where  the  defendant  has 
removed  or  disposed  of  his  property  with  intent  to  defraud  his  creditors.  The  order 
for  arrest  is  obtained  from  a  judge  of  the  court,  on  affidavit  of  one  or  mqre  of  the 
above  causes,  and  furnishing  security  to  defendant  for  damages  in  case  the  arrest 
proves  unlawful.     No  female  can  be  arrested  in  any  civil  action. 


;ro8       ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 

Garnishment.  Debts  due  the  defendant,  and  credits  or  personal  property  of 
the  defendant  in  the  hands  of  a  third  party  may  be  attached  by  leaving  a  copy  of  the 
writ,  and  a  notice  that  the  debts,  credits,  or  personal  property  are  attached. 

Judgment  is  a  lien  on  real  property  of  the  debtor,  not  exempt  from  being  taken 
on  execution,  which  is  situated  in  the  county  where  the  action  was  brought,  and 
becomes  a  lien  on  real  estate  in  other  counties  by  filing  a  transcript  of  such  judgment 
in  the  several  counties.  The  lien  continues  for  two  years  unless  the  judgment  is 
satisfied. 

Stay  Law.  The  power  of  staying  execution  for  a  reasonable  time  is  discretion- 
ary with  the  court.    An  appeal,  accompanied  by  sufficient  security,  operates  as  a  stay. 

Exemptions.  Chairs,  tables,  desks,  and  books  to  the  value  of  two  hundred  dol- 
lars, necessary  household  furniture,  including  one  sewing  machine  and  one  piano 
in  actual  use,  or  belonging  to  a  woman  ;  stoves,  stove-pipe,  and  utensils,  wearing 
apparel,  beds,  bedding,  and  bedsteads,  family  portraits  and  pictures  painted  by  any 
member  of  the  family,  provisions  actually  provided  for  three  months,  three  cows  and 
their  sucking  calves,  four  hogs  with  their  sucking  pigs,  and  food  for  such  cows  and 
hogs  for  one  month  ;  farm  utensils,  two  oxen,  or  two  horses,  or  two  mules,  and  har- 
ness, one  cart  or  wagon,  and  food  for  said  animals  for  one  month,  seed,  grain,  or 
vegetables  for  sowing,  not  exceeding  in  value  two  hundred  dollars  ;  and  seventy-five 
bee-hives,  and  one  horse  and  vehicle  belonging  to  any  person  who  is  maimed  or  crip- 
pled, the  same  being  necessary  to  his  business  ;  tools  of  mechanics  or  artisans  ;  the 
office  furniture,  records,  and  seal  of  a  notary  public  ;  the  instrument  chests  of  sur- 
geons, dentists,  physicians,  surveyors,  and  other  professional  men,  with  their  profes- 
sional libraries  and  office  furniture  ;  the  professional  libraries  and  office  furniture  of 
lawyers,  judges,  ministers,  editors,  school  and  music  teachers,  and  the  indexes, 
abstracts,  books,  papers,  maps,  and  office  furniture  of  searchers  of  records  necessary 
to  be  used  in  their  profession.  The  cabin  of  a  miner,  not  exceeding  five  hundred 
dollars  in  value,  with  all  the  implements  and  gear  necessary  for  his  business,  not 
exceeding  five  hundred  dollars  in  value,  with  two  horses,  mules,  or  oxen,  and  har- 
ness, and  food  for  the  same  for  one  month,  and  the  miner's  claim  worked  by  him, 
not  exceeding  one  thousand  dollars  in  value.  Two  oxen,  mules,  or  horses,  and  hai- 
ness,  with  food  for  the  same  for  one  month,  and  the  cart  or  other  vehicle  by  whic.^ 
carters,  hackmen,  peddlers,  etc.,  habitually  earn  their  living,  one  horse,  vehicle,  and 
harness  used  by  a  physician,  constable,  or  minister  in  the  practice  of  his  profession, 
with  food  for  such  animals  for  one  month  ;  poultry  not  worth  more  than  twenty-five 
dollars ;  the  earnings  of  the  judgment  debtor  for  personal  services  rendered  within 
thirty  days  next  preceding  the  levy,  when  it  appears  by  affidavit  that  such  earnings 
are  necessary  for  family  support,  but  only  half  of  such  earnings  are  exempt  when  the 
debt  is  for  necessaries  ;  shares  in  homestead  associations  not  exceeding  one  thousand 
dollars,  when  the  debtor  has  no  homestead  selected  ;  nautical  instruments  and  wear- 
ing apparel  of  any  mariner  ;  life  insurance  policies,  when  the  premium  does  not 
exceed  five  hundred  dollars  ;  all  firearms  required  by  law  to  be  kept  by  any  person, 
and  one  gun  selected  by  the  debtor  ,  also  a:  homestead,  consisting  of  the  land  on 
which  the  debtor  resides,  to  be  selected  by  him,  to  the  value  of  five  thousand  dollars, 
if  the  head  of  a  family,  or  one  thousand  dollars  of  any  other  person. 

COLORADO. —  Actions.  There  is  only  one  form  of  action  in  civil  cases,  and 
actions  are  begun  by  filing  with  the  clerk  of  the  court  a  written  complaint.  Non- 
residents must  give  security  for  costs. 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 


709 


Attachmknt.  Writ  of  attachment  may  issue  on  filing  with  the  clerk  of  the 
court  a  bond  with  sureties  in  double  the  amount  claimed,  and  an  affidavit,  signed 
by  the  plaintiff  or  on  his  behalf,  stating  the  nature  and  amount  of  the  claim,  as  near 
as  may  be,  and  that  defendant  is  anon-resident  or  a  foreign  corporation  or  a  corpora- 
tion whose  chief  office  or  place  of  business  is  out  of  the  State,  or  that  he  conceals 
himself  or  stands  in  defiance  of  an  officer  so  that  process  cannot  be  sers'ed  on  him,  or 
that  for  more  than  four  months  defendant  has  been  absent  from  the  State,  or  his 
whereabouts  unknown,  the  indebtedness  having  been  due  during  the  whole  of  said 
period,  or  that  he  is  about  to  remove  his  property  from  the  State  with  intent  to  de- 
fraud or  delay  creditors,  or  that  he  has  fraudulently  assigned,  concealed,  removed,  or 
disposed  of  his  property  to  hinder  or  delay  creditors,  or  is  about  to  do  so;  or  that  he 
is  about  to  depart  from  the  State  with  the  intention  of  having  his  effects  removed 
from  the  State  ;  or  that  he  has  failed  or  refused  to  pay  the  price  of  any  article 
delivered  to  him  which  should  have  been  paid  for  on  delivery,  or  to  pay  for  any 
services  rendered  by  plaintiff  at  his  request,  which  were  to  be  paid  for  when  said 
services  were  rendered  ;  or  that  the  debt  was  fraudulently  contracted,  or  that  action 
Js  brought  on  an  over-due  promissory  note,  bill  of  exchange,  or  other  written  instru- 
'aent  for  the  direct  and  unconditional  payment  of  money  or  on  an  over-due  book 
■ccount.  Attachment  may  issue  on  debts  not  due  if  affidavit  states  any  of  the  fore- 
},oing  grounds  except  the  first  two  or  the  last. 

Arrest.  No  person  can  be  arrested  on  mesne  process,  and  only  on  execution, 
when  it  is  on  an  action  of  tort  in  which  the  finding  shall  be  for  the  plaintiff,  and  shall 
state  that  the  defendant  was  guilty  of  malice,  fraud,  or  willful  deceit  in  committing 
the  tort,  and  in  this  case  he  may  be  imprisoned  for  one  year,  or  until  the  judgment 
ii  paid. 

Garnishment.  If  the  sheriff  cannot  find  any  property  of  the  defendant,  or 
sufficient  to  satisfy  the  attachment,  he  may  summon  any  persons  named  in  the  writ, 
who  are  indebted  to,  or  have  goods,  effects,  or  credits  of  the  defendant  in  their 
hands  ;  and  in  any  case  on  the  return  of  an  execution  unsatisfied,  any  person  having 
property  of  the  defendant  or  indebted  to  him  may  be  summoned  into  court  to  answer 
concerning  the  same. 

Judgment  becomes  a  lien  on  the  real  estate  of  the  defendant  in  any  county  by 
filing  in  such  county  an  abstract  of  the  judgment,  and  continues  as  such  for  six  years, 
but  execution  must  issue  within  one  year. 

Stay  Law.     There  is  no  stay  law  in  Colorado. 

Exemptions.  The  following  property  is  exempt ;  The  pictures,  school-books, 
and  library  of  the  debtor  ;  a  seat  or  pew  in  church  ,  one  burial  lot  ;  necessary 
wearing  apparel  of  the  family,  all  beds  and  bedding,  stoves  and  cooking  utensils  used 
by  the  debtor  or  his  family,  and  other  household  furniture  not  exceeding  one  hundred 
dollars  in  value  ;  provisions  for  the  debtor  and  his  family  for  six  months,  either 
provided  or  growing,  or  both,  and  fuel  for  six  months  ;  the  tools,  implements,  or 
stock-in-trade  of  a  mechanic,  miner,  or  other  person,  used  and  kept  for  the  purpose 
of  trade,  not  exceeding  in  value  two  hundred  dollars  ;  the  library  and  implements 
of  professional  men,  not  exceeding  three  hundred  dollars  ;  working  animals  to  the 
value  of  two  hundred  dollars  ;  one  cow  and  calf,  ten  sheep,  and  the  necessary  food 
for  the  same  for  six  months,  provided  or  growing,  or  both,  also  one  farm  v/agon,  one 
plow,  harrow,  and  other  farm  implements,  including  harness  and  tackle  for  the  team 
not  exceeding  fifty  dollars;  and  fifty  per  cent,  of  the  earnings  of  the  head  of  a  family  for 


7IO       ABSTRACT  OF   THE    COLLECTION   OF  DEBTS. 

thirty  days  before  writ,  to  the  extent  of  thirty  dollars.  Every  householder,  the  head 
of  a  family,  is  entitled  to  a  homestead  of  a  farm,  or  lot  or  lots  in  a  city  or  town  to 
the  value  of  two  thousand  dollars,  but  to  secure  this  he  must  cause  the  word  "  home- 
stead" to  be  entered  on  the  margin  of  the  recorded  title  signed  by  himself,  and 
attested  by  the  recorder,  together  with  the  date  of  record. 

CONNECTICUT. — Actions.  There  is  but  one  form  of  civil  action,  which  is 
commenced  by  writ  of  summons  or  attachment,  accompanied  by  the  complaint,  which 
contains  a  statement  of  the  facts  constituting  the  cause  of  action  and  a  demand  for 
the  relief  sought. 

AxTACitMENT.  The  defendant's  estate,  real  or  personal,  may  be  attached  in  all 
complaints  containing  a  money  demand  at  the  commencement  of  the  action  or  at  the 
discretion  of  the  court  during  the  pendency  of  the  same. 

Arrest. — Defendant  cannot  be  arrested  in  any  action  founded  on  contract 
merely,  except  for  breach  of  promise  to  marry,  misconduct  or  neglect  in  any  office  or 
professional  employment,  or  in  actions  against  a  public  officer,  trustee,  or  person 
acting  in  a  fiduciary  capacity  to  recover  moneys  received  by  him.  Defendant  may  be 
arrested  on  mesne  process  or  execution  when  the  declaration  sets  forth  that  he  con- 
tracted the  debt  by  fraud,  or  that  he  conceals,  removes,  or  conveys  away  his  property 
to  prevent  its  being  taken  by  legal  process,  or  refuses  to  pay  an  admitted  debt  or 
judgment,  having  sufficient  property  to  discharge  the  same  concealed  or  withheld,  or 
refuses  to  disclose  rights  of  action  with  intent  to  prevent  their  being  taken  by  foreign 
attachment. 

Garnishment. — Goods  concealed  in  the  hands  of  agents  so  that  they  cannot  be 
attached,  or  debts  due  from  any  person  may  be  reached  by  process  of  foreign 
attachment. 

Judgment  is  not  a  lien  on  lands  unless  attached,  or  unless  a  certificate  describ- 
ing  the  court,  date  of  judgment,  names  of  parties,  amount  unsatisfied,  and  the  prem- 
ises on  which  the  lien  is  claimed  is  recorded  in  the  town  where  the  lands  lie. 

Stay  Law.     There  is  no  stay  of  execution  except  on  appeal. 

Exemptions.  The  necessary  apparel  and  bedding,  household  furniture  neces- 
sary for  supporting  life  (which  clause  is  construed  liberally),  the  arms,  military  equip- 
ments, uniforms,  or  musical  instruments  owned  by  members  of  the  militia,  pensioiv 
money  received  from  the  United  States,  implements  of  the  debtor's  trade,  library  not 
exceeding  in  value  five  hundred  dollars,  one  cow  not  exceeding  one  hundred  and  fifty 
dollars  in  value,  sheep  not  exceeding  ten,  or  one  hundred  and  fifty  dollars  in  value, 
two  swine,  and  two  hundred  pounds  of  pork,  and  poultry  not  exceeding  twenty-five 
dollars  in  value.  Of  the  property  of  any  one  having  a  wife  or  family,  twenty-five 
bushels  of  charcoal,  and  two  tons  of  other  coal,  two  hundred  pounds  of  wheat  flour, 
and  two  cords  of  wood,  two  tons  of  hay,  two  hundred  pounds  of  beef  and  fish  each, 
five  bushels  each  of  potatoes  and  turnips,  ten  bushels  each  of  Indian  corn  and  rye, 
or  the  meal  and  flour  therefrom,  twenty  pounds  each  of  wool  and  flax,  or  the  yarn 
and  cloth  therefrom,  the  horse  of  a  practicing  physician  not  exceeding  two  hundred 
dollars  in  value,  and  a  saddle,  bridle,  harness,  and  buggy,  fisherman's  boat  not 
exceeding  in  value  two  hundred  dollars,  one  sewing  machine,  one  pev.-,  and  lot 
in  a  burying  ground.  Wages  of  any  person  not  exceeding  fifty  dollars  and  all  bene- 
fits from  charitable  associations  are  exempt.  Homestead  to  the  value  of  one  thou- 
sand dollars  in  any  dwelling  owned  and  occupied  by  the  claimant  is  exempt,  provided 
a  declaration  to  that  effect  has  been  executed  and  recorded  in  the  same  manner  as  a 
deed  of  land,  or  inserted  in  the  conveyance  to  him. 


ABSTRACT   OF   THE    COLLECTION  OF  DEBTS.       71 1 

DELAWARE. — Actions  may  be  commenced  by  a  writ  of  capias  or  summons, 
or  in  the  case  of  a  non-resident  defendant  by  attachment  of  property. 

Akrkst.  The  defendant  may  be  arrested  on  mesne  process,  but,  if  he  be  a  citi- 
zen of  the  State,  only  on  plaintiff's  filing  an  affidavit  of  fraud,  except  in  actions  for 
libel,  slander,  or  injury  to  person  or  property  accompanied  with  violence.  A  non- 
resident plaintiff  cannot  arrest  on  mesne  process  a  non-resident  defendant  for  debt 
contracted  without  the  limits  of  the  State. 

The  defendant  can  be  arrested  en  execution  only,  on  affidavit  of  fraud,  and  when 
it  appears  by  affidavit  or  the  return  on  scire  facias  that  he  has  no  property  in  the 
county  sufficient  to  pay  the  debt  and  costs. 

Attachment.  Writ  of  domestic  attachment  may  issue  after  return  by  the  officer 
showing  that  the  defendant  cannot  be  found,  and  proof  of  the  cause  of  action,  or  on 
affidavit  filed  with  the  prothonotary  that  the  defendant  is  justly  indebted  to  the 
plaintiff  in  a  sum  exceeding  fifty  dollars,  and  has  absconded  from  his  usual  place  of 
abode,  or  gone  out  of  the  State  with  intent  to  defraud  his  creditors  or  to  elude  pro- 
cess, as  it  is  believed.  The  proceeds  of  sale  of  property  so  attached  are  divided 
equally  among  defendant's  creditors,  except  that  the  attaching  creditors  are  entitled 
to  a  double  share  "to  the  extent  of  their  debt. 

A  writ  of  foreign  attachment  may  issue  against  a  person  not  an  inhabitant  of  the 
State  after  a  return  as  above,  or  an  affidavit  that  the  defendant  resides  out  of  the 
State,  and  is  justly  indebted  to  the  plaintiff  in  a  sum  exceeding  fifty  dollars. 

G.'\.RNISHMENT.  The  property,  rights,  or  credits  of  the  defendant  in  the  ^jands  of 
a  third  party  may  be  attached,  the  officer  giving  notice  to  such  third  party  that  he 
attaches  such  property,  rights,  or  credits  for  the  benefit  of  all  ti:e  defendant's 
creditors. 

Judgment  is  a  lien  on  real  estate  only  from  the  time  of  actually  entering  it  or 
signing  it,  and  execution  after  being  taken  out  continues  a  lien  on  personal  property 
for  three  years  from  the  time  of  levy. 

Stay  Law.  Execution  on  judgments  for  want  of  affidavit  of  defense  may  be 
stayed  six  months  on  giving  good  security.  In  suits  before  a  magistrate  six  months' 
stay  on  defendant's  pleading  his  freehold,  nine  months  on  giving  security. 

Judgments  obtained  at  second  term  after  suit  are  allowed  a  stay  of  three  months. 
Exemptions.  The  family  Bible,  school  books  and  family  library,  family  pictures, 
a  seat  or  pew  in  church,  burial  lot,  all  the  wearing  apparel  of  debtor  and  family,  and 
in  addition  the  tools,  implements,  and  fixtures  necessary  for  carrying  on  his  trade  or 
business,  not  exceeding  seventy-five  dollars  in  New  Castle  and  Sussex  Counties,  and 
fifty  dollars  in  Kent  County.  There  is  exempted  to  the  head  of  the  family,  in  addi- 
tion to  the  above,  other  personal  property  not  exceeding  two  hundred  dollars  in  New 
Castle  County,  and  not  exceeding  one  hundred  and  fifty  dollars  in  Kent  County,  con- 
sisting of  household  goods  only.  There  is  no  such  additional  exemption  in  Sussex 
County.  Sewing-machines  owned  and  used  by  seamstresses  or  private  families  are 
also  exempt. 

In  New  Castle  County  all  wages  are  exempt  from  attachment,  except  for  board  or 
lodging. 

There  is  no  homestead  exemption. 

DISTRICT  OF  COLUMBIA.— Actions  in  the  Supreme  Court  of  the  Dis- 
trict are  commenced  by  filing  in  the  clerk's  office  a  libel  of  information,  bill,  petition, 
or  declaration,  and  service  of  writ. 


712       ABSTRACT  OF   THE  COLLECTION  OF  DEBTS. 

Plaintiff  may  include  in  his  declaration  all  causes  of  action  against  the  defendant, 
stating  them  in  separate  counts. 

Arrest.  No  person  can  be  arrested  in  a  civil  suit,  or  imprisoned  for  debt  other 
than  fines. 

Attachment.  Writs  of  attachment  and  garnishment  may  issue  either  at  the 
commencement  or  during  the  pendency  of  the  action,  on  plaintiff's  filing  an  affidavit, 
supported  by  testimony  of  on£  or  more  witnesses,  setting  forth  the  grounds  of  action 
and  that  plaintiff  has  a  good  right  to  recover,  and  also  stating  either  that  defendant 
is  a  non-resident  or  evades  service  of  process  by  concealing  himself  or  withdrawing 
temporarily  from  the  District,  or  has  removed  or  is  about  to  remove  some  of  his 
property  from  the  District  to  defeat  just  demands. 

He  must  also  give  security  for  damages  and  costs. 

Garnish.MENT.     See  Attachment. 

Judgment  is  a  lien  on  real  estate  from  the  date  of  rendition. 

Stay  Law.     Execution  is  stayed  only  by  appeal  and  filing  a  bond. 

Exemptions.  Wearing  apparel  of  all  persons  ;  and  to  heads  of  families  who  are 
householders,  beds,  bedding,  household  furniture,  stoves,  cooking  utensils,  etc.,  not 
exceeding  three  hundred  dollars  in  value  ;  provisions  for  three  months'  support, 
whether  provided  or  growing  ;  fuel  for  three  months  ;  mechanics'  tools,  and  imple- 
ments of  debtor's  trade  or  business,  amounting  to  two  hundred  dollars  in  value,  with 
two  hundred  dollars'  worth  of  stock  for  carrj-ing  on  business  of  debtor  or  his  family  ; 
library  and  implements  of  professional  man  or  artist,  to  value  of  three  hundred  dol- 
lars ;  one  horse,  one  mule,  or  yoke  of  oxen,  one  cart,  wagon,  or  dray,  and  harness 
for  team  ;  farming  utensils,  with  food  for  such  team  for  three  months ;  and  if  debtor 
be  a  farmer,  any  other  farming  tools  to  the  value  of  one  hundred  dollars  ;  all  family 
pictures,  and  all  family  library  not  exceeding  in  value  four  hundred  dollars  ;  one  cow, 
one  swine,  six  sheep.  None  of  the  above  exemptions,  except  wearing  apparel,  beds, 
bedding,  household  furniture,  and  provisions,  extends  to  suits  for  wages  of  servants, 
common  laborers,  or  clerks.  The  earnings,  not  exceeding  one  hundred  dollars  per 
month,  of  actual  residents  of  the  District  who  are  married  persons,  or  who  have  to 
provide  for  the  support  of  a  family  in  the  District,  for  two  months  preceding  the 
issuing  of  process  are  also  exempt. 

There  is  no  homestead  exemption. 

FLORIDA. — Actions  at  law  are  commenced  by  filing  a /r<rf/})(?  with  the  clerk. 

Arrest.  There  is  no  statute  law  authorizing  the  arrest  of  a  defendant  in  a  civil 
action. 

Attachment  may  issue  on  the  affidavit  in  v.-riting  before  a  justice  of  the  peace  or 
clerk  of  the  circuit  court,  that  the  amount  demanded  is  actually  due,  and  that  the 
plaintiff  has  reason  to  believe  that  the  defendant  will  part  with  his  property  fraudu- 
lently before  judgment  can  be  obtained,  or  is  actually  moving  his  property  out  of  the 
State,  or  is  about  to  do  so,  or  resides  out  of  the  State,  or  is  removing  or  about  to 
remove  from  the  State,  or  absconds  or  conceals  himself  or  his  property,  or  is  fraudu- 
lently disposing  of  the  same,  or  is  removing  or  is  about  to  remove  beyond  the  judicial 
circuit  in  which  he  resides,  and  furnishing  security  for  costs  and  damages.  Writ  of 
attachment  may  issue  before  the  debt  or  demand  is  due,  provided  it  will  become  due 
within  nine  months,  on  plaintiff's  filing  an  affidavit  that  the  amount  claimed  is  actually 
an  existing  debt  or  demand,  the  amount  and  date  when  it  will  become  due,  and  also 
that  the  debtor  is  actually  removing  his  property  beyond  the  limits  of  the  State,  or  is 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS.       ^13 

fraudulently  disposing  of  or  secreting  the  same  for  the  purpose  of  avoiding  the  pay- 
ment of  his  just  debts. 

Garnishment.  A  writ  of  garnishment  may  issue  on  all  judgments  or  decrees 
rendered  whether  execution  issued  on  such  judgment  be  returned  or  not,  provided  an 
affidavit  on  behalf  of  the  plaintiff  be  filed  stating  that  he  does  not  believe  that  the 
defendant  has  property-  in  his  possession  on  which  le\'y  can  be  made  sufficient  to 
satisfy  the  judgment. 

A  writ  of  garnishment  may  also  be  sued  out  before  judgment  on  filing  a  like 
affidavit. 

JLuDGMENT  is  a  lien  on  real  estate,  and  becomes  so  in  any  county  by  recording  it 
in  such  county  before  the  alienation  of  the  property.  It  is  binding  in  the  countv  in 
which  suit  was  brought  from  the  date  when  it  was  rendered. 

Stay  Law.     There  is  no  stay  of  execution  in  Florida. 

Exemptions.  There  is  exempt  to  the  head  of  each  family  a  homestead  of  one 
hundred  and  sLxty  acres,  or  one  half  an  acre  in  an  incorporated  city  or  town,  with  the 
improvements  on  such  real  estate,  together  with  one  thousand  dollars'  worth  of  personal 
property,  to  be  selected  by  the  debtor,  but  no  property  is  exempt  from  sale  for  taxes, 
for  obligations  contracted  for  the  purchase  of  the  same  or  in  making  improvements 
thereon,  or  for  labor  performed  thereon. 

Money  due  for  personal  labor  or  ser^-ices  of  the  head  of  a  family  is  exempt  from 
a.ttachment  or  garnishment. 

GEORGIA.  —  Actions.  All  distinctions  between  real,  personal,  and  mixed 
actions  are  abolished. 

Arrest.  Imprisonment  for  debt  is  abolished,  but  in  actions  for  the  recover}-  of 
personal  property,  on  plaintiff's  making  affidavit  that  he  has  reason  to  believe  that 
said  property  has  been  or  will  be  eloigned  or  moved  away,  or  will  not  be  forthcoming 
to  answer  the  judgment,  defendant  may  be  arrested  and  committed  to  jail,  unless  he 
give  bond  with  good  security,  or  on  application  to  the  judge  states  on  oath  that  he  is 
neither  able  to  give  the  security  required  by  law  nor  produce  the  property,  and  can 
furnish  satisfactory  reasons  for  its  non-production,  when  he  may  be  discharged  on 
his  own  recognizance. 

Attachments  may  issue  :  i.  When  the  debtor  resides  out  of  the  State. 
2.  When  he  is  actually  removing  or  is  about  to  remove  without  the  limits  of  the 
county.  3.  When  he  absconds.  4.  When  he  conceals  himself .  5.  When  he  resists 
legal  arrest.  6.  When  he  is  causing  his  property  to  be  removed  beyond  the  limits  of 
the  State,  when  he  is  disposing  of  or  threatens  to  dispose  of  or  conceals  his  property 
liable  to  the  payment  of  his  debts,  or  makes  a  fraudulent  lien  thereon,  to  avoid  pay- 
ment of  his  debts.  Plaintiff  must  make  affidavit  before  a  judge  of  the  sup)erior  court, 
or  county  court,  a  justice  of  the  peace,  or  a  notarj-  public,  setting  forth  one  of  the 
above  causes,  and  the  amount  of  the  debt  claimed,  and  must  give  a  bond  to  the  de- 
fendant to  prosecute  his  suit,  and  the  defendant  may  dissolve  the  attachment  by 
giving  bond. 

Garnishment  may  issue  before  or  after  judgment  against  debtors  of  the  defend- 
ant, on  plaintiff's  making  affidavit  of  the  amount  due,  and  that  he  has  reason  to 
apprehend  the  loss  of  the  same  or  of  some  part  thereof  unless  garnishment  issue,  and 
giving  bond  with  security  for  damages  and  costs. 

Judgment  is  a  lien  on  all  property,  real  or  personal,  except  promissorj-  notes  and 
Gnoses  in  action.     Judgments  draw  interest,  provided  the  original  claim  would  do  so 


714 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 


The  judgment  lien  is  discharged  in  four  years  on  real  property,  and  two  years  on 
personal  property  sold  to  a  bona  fide  purchaser  for  a  valuable  consideration. 

Stay  Law.  If  the  debtor  gives  a  bond  with  good  security,  execution  may  be 
stayed  sixty  days. 

Exemptions.  The  Constitution  of  1S77  provides  that  there  shall  be  exempt  from 
levy  and  sale  by  virtue  of  any  process  whatever,  of  the  property  of  every  head  of  a 
family,  or  guardian  or  trustee  of  a  family  of  minor  children,  or  every  aged  or  infirm 
person,  or  person  having  the  care  and  support  of  a  dependent  female  of  any  age  who 
is  not  the  head  of  a  family,  real  or  personal  property,  or  both,  to  the  value  of  sixteen 
hundred  dollars,  except  that  such  property  is  liable  for  taxes,  purchase  money,  labor 
done  thereon,  or  materials  furnished  therefor,  and  for  the  expense  of  removing  en- 
cumbrances thereon.  Debtor  may  waive  in  writing  the  benefit  of  these  exemptions, 
except  as  to  wearing  apparel  and  not  exceeding  three  hundred  dollars'  worth  of  house- 
hold and  kitchen  furniture  and  provisions  to  be  selected  by  himself  and  wife. 

If  the  debtor,  being  the  head  of  a  family,  does  not  avail  himself  of  the  foregoing 
exemption,  he  may  claim  those  allowed  by  prior  laws,  viz.:  fifty  acres  of  land  and 
five  acres  additional  for  every  child  under  sixteen  years,  including  the  dwelling-house, 
if  such  house  and  improvements  do  not  exceed  in  value  two  hundred  dollars,  such 
homestead  not  to  be  in  any  city,  town,  or  village  ;  or  in  lieu  thereof,  real  estate  in  a 
city,  town,  or  village,  not  exceeding  five  hundred  dollars  in  value  ;  also  one  farm 
horse  or  mule,  one  cow  and  calf,  ten  head  of  hogs,  and  fifty  dollars'  worth  of  pro- 
visions, and  five  dollars'  worth  additional  for  every  child,  beds,  bedding,  and  common 
bedsteads  sufiicient  for  the  family,  one  loom,  one  spinning-wheel,  and  two  pairs  of 
cards  and  one  hundred  pounds  of  lint  cotton,  common  tools  of  trade  of  the  debtor 
and  his  wife,  equipments  and  arms  of  a  militia  soldier,  and  a  trooper's  horse,  ordinary 
cooking  utensils  and  table  crockery,  wearing  apparel  of  the  debtor  and  his  family, 
family  Bible,  religious  works,  and  school-books,  family  portraits,  library  of  a  profes- 
sional man  in  actual  practice  not  exceeding  in  value  three  hundred  dollars,  to  be 
selected  by  the  debtor.  Also  fifty  bushels  of  corn,  one  thousand  pounds  of  fodder, 
one  one-horse  wagon,  one  table,  one  set  of  chairs  sufficient  for  the  use  of  the  family, 
and  household  and  kitchen  furniture,  all  not  to  exceed  one  hundred  and  fifty  dollars 
in  value.  A  family  sewing-machine  is  exempt,  whether  the  owner  is  the  head  of  1 
family  or  not. 

The  wages  of  mechanics,  journeymen,  and  day  laborers  are  also  exempt. 

IDAHO.  —  Actions.  There  is  but  one  form  of  action  which  is  commenced  by 
filing  a  complaint  and  causing  a  summons  to  be  issued  thereon. 

Arrest.  Defendant  may  be  arrested  in  the  following  cases  :  in  an  action  on  a 
contract  when  defendant  is  about  to  depart  from  the  Territory  with  intent  to  defraud 
his  creditors  ;  in  an  action  for  willful  injury  to  person,  character,  or  property ;  in  an 
action  for  a  fine  or  penalty,  or  on  a  promise  to  marry,  or  for  money  or  property  em- 
bezzled or  fraudulently  misapplied,  or  for  misconduct  or  neglect  in  office  or  in 
professional  employment,  or  for  willful  violation  of  duty.  In  an  action  to  recover 
possession  of  personal  property  unjustly  detained,  where  the  property  has  been  con- 
cealed, removed,  or  disposed  of  to  prevent  its  being  found  ;  when  defendant  was 
guilty  of  fraud  in  contracting  the  debt  or  obligation  sued  on,  or  in  concealing  or  dis- 
posing of  the  property  for  the  taking,  detention,  or  conversion  of  which  the  action 
was  brought,  or  when  defendant  has  removed  or  disposed  of  his  property  or  is  about 
to  do  so  to  defraud  his  creditors. 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS.       J15 

Plaintiff  must  file  affidavit  showing  one  or  more  of  the  above  causes  and  a  bond 
of  indemnity  to  the  defendant. 

Attachment  may  issue  in  actions  on  contracts  for  the  express  payment  of 
money,  where  there  is  no  security  or  in  an  action  of  contract  against  a  non-resident, 
on  plaintiff's  filing  an  affidavit  setting  forth  the  amount  due,  and  that  the  attachment 
is  not  sought  nor  the  action  prosecuted  to  hinder,  delay,  or  defraud  creditors,  and 
giving  security. 

Garnishme.nt.  On  notice  in  writing  from  the  plaintiff  that  any  persort  has 
property  or  credits  belonging  to  the  defendant,  the  sheriff  may  attach  the  same  by 
serving  on  such  person  a  copy  of  the  writ  of  attachment  or  execution,  together  with 
notice  that  such  property  or  credits  are  attached. 

Judgment  is  a  lien  for  two  years  from  the  time  of  docketing  the  same,  on  all 
real  estate  owned  by  the  defendant  in  the  county,  and  in  any  -other  county  for  two 
years  after  a  transcript  of  the  original  docket  has  been  filed  with  the  recorder  thereof. 

Stay  Law.     There  is  no  stay  of  execution  except  in  case  of  appeal. 

Exemptions,  i.  Chairs,  tables,  desks,  and  books  to  the  value  of  two  hundred 
dollars.  2.  Necessary  household,  table,  and  kitchen  furniture,  including  one  sewing- 
machine,  stoves  and  stove  furniture,  wearing  apparel,  beds,  bedding  and  bedsteads, 
pictures  and  drawings  executed  by  any  member  of  the  family,  family  portraits  and 
their  frames,  provisions  for  three  months,  two  cows  with  their  sucking  calves,  and 
two  hogs  with  their  sucking  pigs.  3.  Farming  utensils  and  implements  not  exceed- 
ing three  hundred  dollars  in  value,  two  oxen  or  two  horses  or  mules  and  their 
harness,  one  cart  or  wagon,  and  food  for  such  oxen,  horses,  or  mules  for  one  month, 
seed  grain  to  be  sown  within  the  ensuing  six  months.  4.  Necessary  tools  or  imple- 
ments of  a  mechanic  or  artisan  not  exceeding  five  hundred  dollars,  notarial  seal  and 
records  of  a  notary  public,  instruments  and  chests  of  a  surgeon,  physician,  surveyor, 
or  dentist,  with  their  scientific  and  professional  libraries,  professional  libraries  and 
office  furniture  of  attorneys,  councilors,  and  judges,  and  libraries  of  ministers  of  the 
Gospel.  5.  The  cabin  of  a  miner  not  exceeding  five  hundred  dollars,  also  his 
mining  tools  and  apparatus,  and  a  pack-horse  of  prospector.  6.  Two  oxen,  two 
horses,  or  two  mules  and  their  harness,  and  one  vehicle,  by  the  use  of  which  a  carter, 
peddler,  teamster,  or  other  laborer  habitually  earns  his  living,  and  one  horse  wit.'« 
vehicle  and  harness  or  other  equipments  used  by  a  physician,  surgeon,  or  ministe  1 
in  making  his  professional  visits,  with  food  for  such  animals  for  one  month.  7.  Th<f 
earnings  of  the  judgment  debtor  for  personal  services  rendered  within  thirty  days  of 
the  levy  of  execution,  when  such  earnings  are  necessary  for  the  support  of  the  family. 
8.  Shares  held  by  a  member  of  an  incorporated  homestead  association  not  exceeding 
one  thousand  dollars,  if  the  holder  is  not  the  owner  of  a  homestead,  g.  Insurance 
on  the  life  of  the  debtor  to  the  extent  of  an  annual  premium  not  exceeding  two 
hundred  and  fifty  dollars.  10.  A  homestead  not  exceeding  five  thousand  dollars  to 
head  of  family,  and  one  thousand  dollars  to  other  persons. 

ILLINOIS.  —  Actions  are  begun  by  a  summons  issued  under  the  seal  of  the 
court. 

Attachments.  The  creditor  may  have  an  attachment  against  the  property  of 
the  defendant  when  the  debt  exceeds  twenty  dollars,  i.  Where  the  debtor  is  a  non- 
resident. 2.  Where  the  debtor  conceals  himself,  or  stands  in  defiance  of  the  officer 
so  that  process  cannot  be  served.  3  and  4.  W'here  the  debtor  has  departed,  or  is 
about  to  depart  from  the  State  with  the  intent  to  have  his  effects  removed  from  the 


7l6       ABSTRACT  OF  THE   COLLECTION  OF  DEBTS. 

State.  5.  Where  the  debtor  is  about  to  remove  his  property  from  the  State,  to  the 
injury  of  creditors.  6,  7,  and  8.  Where  the  debtor  has,  within  two  years  preceding 
the  filing  of  the  affidavit,  fraudulently  conveyed,  concealed,  or  disposed  of  his 
property  so  as  to  hinder  or  delay  his  creditors,  or  is  about  to  do  so.  g.  Where  the 
debt  sued  for  was  fraudulently  contracted.  The  creditor  must  file  an  affidavit  with 
the  clerk  of  the  court,  stating  the  nature  and  amount  of  the  indebtedness,  and  any 
one  of  the  preceding  causes,  and  the  place  of  residence  of  the  defendant,  if  known  ; 
must  give  a  bond  to  the  defendant  to  prosecute  his  case  and  to  pay  costs  if  not 
successful. 

Arrest.  The  defendant  may  be  arrested  on  mesne  process,  in  actions  of  con- 
tract and  on  judgments,  on  an  affidavit  setting  forth  the  cause  and  amount  due,  and 
facts  showing  that  the  defendant  fraudulently  contracted  the  debt,  or  that  he  has 
concealed,  assigned,  or  disposed  of  property  with  intent  to  defraud  his  creditors  ;  or, 
in  actions  sounding  in  damages  merely,  the  facts  of  the  case,  and  that  the  plaintifl 
believes  that  the  benefit  of  the  judgment  will  be  lost  unless  the  defendant  is  required 
to  give  bail.     Plaintiff  must  also  give  security  for  damages  and  costs. 

After  return  of  execution  unsatisfied,  an  order  of  arrest  may  be  procured  on 
\)laintiff's  affidavit  that  demand  has  been  made  for  property  to  satisfy  execution,  and 
that  he  believes  that  he  has  property  specified,  not  exempt,  which  he  unjustly  refuses 
t)  surrender,  or  that  since  debt  was  contracted  or  cause  of  action  accrued,  debtor 
has  fraudently  conveyed,  concealed,  or  otherwise  disposed  of  some  part  of  his  estate 
to  secure  same  to  his  own  use,  or  with  intent  to  defraud  creditors,  and  setting  forth 
facts  on  which  belief  is  founded. 

Garnishment.  On  a  writ  of  attachment,  when  the  officer  is  unable  to  find 
jiroperty  of  the  defendant,  he  may  summon  any  persons  designated  by  the  plaintiff, 
■v/ho  have  property  of  the  defendant,  or  who  owe  debts  to  the  defendant,  the  same 
.IS  if  they  were  inserted  in  the  writ.  He  may  also  summon  such  persons  after  judg- 
ment and  return  by  the  officer  of  "no  property  found,"  on  affidavit  by  the  plaintiff. 
The  wages  of  defendant  who  is  the  head  of  a  family,  and  residing  with  the  same, 
to  the  amount  of  fifty  dollars,  ire  exempt. 

Judgment  is  a  lien  against  real  estate  in  the  county  for  seven  years,  and  bears 
interest  at  six  per  cent.  There  is  no  priority  of  judgment  rendered  at  the  same  term 
of  the  court. 

Stay  Law.     There  is  no  stay  of  execution  in  Illinois. 

Exemptions.  A  householder  having  a  family,  is  entitled  to  a  homestead  in  a 
farm  or  lot  of  land,  and  the  buildings  occupied  as  a  residence,  to  the  value  of  one 
thousand  dollars  ;  of  personal  property,  the  necessary  wearing  apparel.  Bibles, 
school-books,  family  pictures,  one  hundred  dollars'  worth  of  other  property  to  be  se- 
lected by  the  debtor,  and,  where  the  debtor  is  the  head  of  a  family,  three  hundred 
dollars'  worth  of  such  property. 

INDIANA. — Actions.  All  distinctions  of  actions  are  abolished,  and  there  is 
but  one  form  for  law  and  equity  ;  must  be  prosecuted  in  the  name  of  the  real  party 
to  the  suit,  and  are  begun  by  filing  with  the  clerk  a  complaint  and  causing  a  sum- 
mons to  issue  thereon. 

Arrest.  The  defendant  may  be  arrested  and  held  to  bail  at  any  time  before 
judgment,  on  an  affidavit  on  behalf  of  the  plaintiff,  specifying  his  right  to  recover  an 
existing  debt  or  damages,  and  stating  that  affiant  believes  that  the  defendant  is  about 
to  leave  the  State,  taking  his  property  with  him,  with  intent  to  defraud  his  creditors. 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 


7^7 


PlaintiiT  must  give  bond  to  pay  to  the  defendint  all  damages  if  the  order  be  wrong- 
fully obtained. 

Attachment.  Plaintiff  may  have  a  writ  of  attachment  at  any  time  where  the 
action  is  for  the  recovery  of  money,  where  the  defendant  is  a  foreign  corporation  or 
a  non-resident  of  the  State,  or  secretes  himself,  or  is  secretly  leaving  the  State  or  has 
left  it,  with  intent  to  defraud  his  creditors,  or  is  removing,  or  about  to  remove,  his 
property  from  the  State,  not  leaving  enough  to  satisfy  the  plaintiffs  claims,  or  has 
sold,  conveyed,  or  otherwise  disposed  of  his  property  with  intent  to  defraud  or  delay 
his  creditors,  or  is  about  to  do  so.  He  must  file  with  the  clerk  an  affidavit  showing 
the  nature  and  amount  of  his  claim,  that  it  is  just,  and  that  lie  believes  he  ought  to 
recover  the  same,  and  one  of  the  grounds  of  attachment  mentioned  above,  and  give 
security  to  the  defendant  for  damages  and  costs. 

G.\RNISHMENT.  If  an  affidavit  is  filed  at  any  time  stating  that  the  affiant  has 
good  reason  to  believe  that  any  one  has  property  of  the  defendant  which  cannot  be 
attached,  or  is  indebted  to  him,  the  clerk  may  issue  a  summons  to  such  person  or 
persons  to  appear  as  garnishee.  The  garnishee  may  be  arrested  on  affidavit  filed, 
that  it  is  believed  that  he  is  about  to  abscond,  with  intent  to  defraud  creditors,  and 
that  he  has  property  of  the  defendant. 

Judgment  for  the  recovery  of  money  or  costs  is  a  lien  on  the  real  estate  and 
chattels  real  of  the  defendant  in  the  county  where  judgment  was  rendered,  for  ten 
years,  and  becomes  such  a  lien  in  other  counties  at  the  filing  therein  of  a  certified 
copy.  Judgments  bear  interest  from  the  date  of  signing,  at  the  same  rate,  not  ex- 
ceeding six  per  cent.,  as  the  contracts  on  which  they  were  rendered. 

St.\y  Law.  On  giving  bond  with  good  surety,  execution  may  be  stayed  as  fol- 
lows :  On  sums,  excluding  costs,  not  exceeding  six  dollars,  thirty  days  ;  on  all  sums 
between  six  and  tv.-elve  dollars,  sixty  days  ;  between  twelve  and  twenty  dollars,  ninety 
days  ;  between  twenty  and  forty  dollars,  one  hundred  and  twenty  days  ;  between 
forty  and  one  hundred  dollars,  one  hundred  and  fifty  days  ;  over  one  hundred  dol  • 
lars,  one  hundred  and  eighty  days. 

Exemptions.  An  amount  of  property,  real  or  personal,  not  exceeding  six  hun- 
dred dollars,  is  exempt  for  any  debt  growing  out  of  or  founded  on  contract.  Th"; 
debtor  may  select  the  property  that  he  wishes  to  have  exempt.  There  is  no  home- 
stead exemption. 

IOWA. —  Actions.  All  distinctions  of  forms  are  abolished  ;  they  must  be  pros- 
ecuted by  and  in  the  name  of  the  real  party  in  interest,  except  in  the  case  of  e.xecu- 
tors,  administrators,  guardians,  and  trustees,  and  are  beg^n  by  serving  the  defendant 
with  a  notice  that  a  suit  will  be  brought  on  or  before  a  certain  day,  and  filing  a  peti- 
tion containing  a  statement  of  the  facts  constituting  the  cause  of  action. 

Arrest.  No  arrest  on  mesne  process.  Debtor  may  be  arrested  on  execution 
for  examination,  when  satisfactory  proof  is  made  that  he  is  about  to  leave  the  State, 
or  conceal  himself. 

Attachment.  There  may  be  an  attachment  at  any  time  on  a  sworn  petition, 
stating,  I.  That  defendant  is  a  foreign  corporation.  2.  Non-resident.  3.  Is 
about  to  remove  his  property  from  the  State  without  leaving  sufficient  for  payment 
of  debts.  4.  Has  disposed  of  his  property  with  intent  to  defraud  his  creditors. 
5.  Is  about  to  do  so.  6.  Has  absconded,  so  that  ordinary'  process  cannot  be  served 
on  him.  7.  Is  about  to  remove  permanently  from  the  county,  and  has  property 
therein  not  exempt  and  that  he  refuses  to  pay  to  the  creditor.     3.    Is  about  to  re- 


71 8       ABSTRACT  OF  THE   COLLECTION  OF  DEBTS. 

move  permanently  from  the  State  and  refuses  to  pay  or  secure  the  debt.  q.  Is  about 
to  remove  his  property  out  of  the  county  with  intent  to  defraud  creditors.  lo.  Is 
about  to  convert  his  property  into  money  with  intent  to  place  it  out  of  reach. 
II.  Has  property  concealed.  12.  That  the  debt  is  for  property  obtained  under 
false  pretences. 

Property  may  be  attached  before  debt  becomes  due  when  nothing  but  time  is 
wanting  to  fix  an  absolute  indebtedness,  if  petition,  in  addition  to  that  fact,  states  that 
defendant  has  disposed  of  his  property  with  intent  to  defraud  creditors,  or  is  about 
to  do  so,  or  that  he  is  about  to  remove  from  the  State  and  refuses  to  make  any 
arrangements  for  securing  the  payment  of  the  debt,  which  contemplated  removal 
was  not  known  to  plaintiff  at  the  time  when  the  debt  was  contracted  or  that  the 
debt  was  incurred. for  property  obtained  under  false  pretenses. 

Plaintiff  must  file  a  bond  with  sureties  before  the  issuing  of  the  writ. 

Garnishment.  On  a  writ  of  attachment  the  sherifT  shall  summon  such  persons 
as  garnishees  as  plaintifT  may  direct,  giving  them  written  notice  not  to  pay  any  debt 
due  the  defendant  or  thereafter  to  become  due,  and  to  retain  any  property  belonging 
to  defendant  to  be  dealt  with  according  to  law. 

Judgment  is  a  lien  on  real  estate  for  ten  years,  in  the  county  where  it  was 
rendered,  from  the  date  of  such  rendition,  and  in  other  counties  from  the  date  of 
filing  an  attested  copy  therein  ;  bears  interest  at  six  per  cent,  unless  a  different  rate 
was  expressed  in  the  contract,  in  which  case  it  shall  bear  such  rate  of  interest,  not 
exceeding  ten  per  cent. 

Stay  Law.  On  all  judgments  for  the  recovery  of  money,  except  those  rendered 
on  appeal  or  writ  of  error,  or  for  money  received  in  a  fiduciary  capacity  or  for  breach  of 
official  duty,  execution  may  be  stayed  by  giving  bonds  with  good  security,  as  follows  : 
On  sums  not  exceeding  one  hundred  dollars,  three  months  ;  on  sums  exceeding  6ne 
hundred  dollars,  six  months.  All  judgments  on  which  execution  is  stayed  bear 
interest  at  ten  per  cent. 

Exemptions.  To  a  debtor,  resident  of  the  State  and  head  of  a  family,  the 
wearing  apparel  for  himself  and  his  family  and  trunks  to  contain  the  same,  one 
musket  or  rifle  and  shot  gun,  private  libraries  and  family  Bibles,  portraits,  pictures, 
musical  instruments,  paintings,  not  kept  for  sale,  seat  or  pew  in  church,  and  lot  in 
burying-ground,  not  exceeding  one  acre,  two  cows  and  calf,  one  horse,  fifty  sheep 
and  the  wool  therefrom  and  materials  manufactured  from  such  wool,  six  stand  of 
bees,  five  hogs  and  all  the  pigs  under  six  months,  the  necessary  food  for  all  animals 
exempted,  for  six  months  ;  all  the  flax  raised  on  ground  not  exceeding  one  acre  and 
the  manufactures  therefrom,  one  bedstead  and  bedding  for  every  two  persons,  cloth 
manufactured  by  the  debtor  not  exceeding  one  hundred  yards,  household  and  kitchen 
furniture  not  exceeding  two  hundred  dollars  in  value,  spinning-wheel  and  looms,  one 
sewing-machine  and  other  instruments  of  domestic  labor  kept  for  actual  use,  neces- 
sary provisions  and  fuel  for  six  months,  tools,  instruments  or  books  of  the  debtor, 
if  a  farmer,  mechanic,  surveyor,  or  professional  man  ;  horse  or  team  and  wagon  or 
other  vehicle  with  the  harness  and  rigging,  by  the  use  of  which  the  debtor  earns  his 
living,  and  if  the  debtor  is  a  printer,  types,  furniture,  and  materials  necessary  for  his 
business  not  exceeding  twelve  hundred  dollars  in  value.  The  earnings  of  the  debtor 
within  ninety  days  of  the  levy  are  also  exempt.  If  the  debtor  has  started  to  leave 
the  State  he  will  have  exempted  only  the  wearing  apparel  of  himself  and  family  and 
other  property  not  exceeding  seventy-five  dollars  in  value. 


ABSTRACT  OF   THE    COLLECTION  OF  DEBTS.       719 

The  homestead  of  the  debtor  is  also  exempt,  embracing  the  house  used  by  him  as 
a  home,  and  if  in  a  town  plat,  not  exceeding  onfe-half  an  acre  in  extent,  or  not 
exceeding  forty  acres  if  not  in  any  town  plat.  To  an  unmarried  person  not  the  head 
of  a  family  or  to  a  non-resident  there  is  exempt  ordinary  wearing  apparel  and  trunk 
necessary  to  contain  the  same. 

KANSAS. — Actions  are  brought  in  the  name  of  the  real  party  interested,  and 
begun  by  filing  with  the  clerk  a  petition,  and  causing  a  summons  to  issue  thereon, 
directed  to  sheriff. 

Arrest.  Debtor  may  be  arrested  before  or  after  judgment  —  on  giving  security 
and  filing  with  the  clerk  an  affidavit,  stating  the  nature  and  the  amount  of  the  claim, 
and  that  it  is  just,  and  one  of  the  following  reasons  :  i.  That  defendant  has  or  is 
about  to  remove  his  property  out  of  the  jurisdiction  of  the  court  with  intent  to  defraud 
creditors.  2.  That  he  has  begun  to  convert  his  property  into  money  for  the  purpose 
of  placing  it  beyond  the  reach  of  his  creditors.  3.  That  he  has  property  fraudu- 
lently concealed.  4.  That  he  has  assigned  or  disposed  of  his  property,  or  begun  to 
do  so,  with  intent  to  defraud  his  creditors.  5.  That  he  fraudulently  contracted  the 
ilebt.  The  affidavit  must  also  state  the  facts  claimed  to  justify  the  belief  in  the  above 
iiauses  for  arrest. 

Attachment.  Writ  of  attachment  may  issue  for  one  of  the  following  causes  : 
I.  That  the  defendant  is  a  foreign  corporation  or  non-resident  (but  in  this  case  only 
on  a  demand  arising  upon  a  contract,  judgment,  or  decree,  unless  the  cause  of  action 
arose  wholly  within  the  limits  of  the  State).  2.  That  he  has  absconded  with  intent 
to  defraud  creditors.  3.  That  he  has  left  the  county  with  intent  to  avoid  service. 
4.  So  conceals  himself  that  summons  cannot  be  served  on  him.  5.  Is  about  to 
remove  his  property  from  the  jurisdiction  of  the  court  with  intent  to  defraud.  6.  Is 
about  to  convert  his  property  into  money  in  order  to  place  it  beyond  the  reach  of 
creditors.  7.  Has  property  concealed.  8.  Has  assigned  or  disposed  of,  or  is  about 
to  dispose  of,  property  to  defraud  or  delay  his  creditors.  9.  That  he  fraudulently 
contracted  the  debt.  10.  Where  the  damages  sought  to  be  recovered  are  for 
injuries  resulting  from  the  commission  of  a  felony  or  misdemeanor  or  the  seduction 
of  a  female.  11.  Where  the  debtor  failed  to  pay  the  price  of  any  article  delivered, 
when  by  the  contract  he  was  bound  to  pay  for  on  delivery.  An  affidavit  must  be  filed 
stating  the  nature  and  amount  of  the  claim,  and  that  it  is  a  just  one,  and  also  one  of 
the  above  causes,  and  security  must  be  given  unless  the  defendant  is  a  foreign 
corporation  or  a  non-resident,  ^^'here  either  the  fifth,  sixth,  seventh,  or  eighth  of 
t'le  above  grounds  exists  the  action  may  be  brought  and  attachment  made  before  the 
maturity  of  the  debt  by  special  order  of  court.  Attachment  may  be  dissolved  by  the 
defendant  by  giving  bonds. 

Garnishment  issues  on  filing  with  the  clerk  an  affidavit  setting  forth  the  amount 
of  claim  that  affiant  believes  that  the  person  or  persons  named  have  property  of  the 
defendant,  or  are  indebted  to  him,  that  the  same  is  not  exempt  and  that  defendant 
has  not  property  liable  to  execution  sufficient  to  satisfy  debt  and  filing  bond  to 
defendant. 

Judgment  is  a  lien  on  real  estate  in  the  county  where  it  was  rendered  from  the 
first  day  of  term  in  which  it  was  so  rendered,  and  in  other  counties  from  the  filing 
therein  an  attested  copy  of  the  judgment,  and  such  lien  continues  for  five  years. 
Judgment  by  confession  or  those  rendered  at  the  term  the  action  is  commenced  are 
liens  only  from  the  date  of  entry.  Unless  execution  is  taken  out  within  one  year  the 
lien  ceases  as  against  any  other  judgment  creditor. 


720       ABSTRACT  OF  THE   COLLECTION  OF  DEBTS. 

Judgments  bear  interest  at  the  rate  of  six  per  cent.,  or  when  rendered  on  contract 
the  rate  mentioned  there  is  not  exceeding  ten  per  cent. 

Stay  Law.  There  is  no  stay  of  execution  in  the  District  Courts  except  on 
appeal.  In  justices'  courts  stay  is  granted  on  filing  a  bond  with  good  security,  as 
follows  :  on  amounts  not  exceeding  twenty  dollars,  thirty  days  ;  between  twenty  and 
fifty  dollars,  sixty  days  ;  between  fifty  and  one  hundred  dollars,  ninety  days  ;  over 
one  hundred  dollars,  one  hundred  and  twenty  days. 

Exemptions.  A  homestead  of  one  hundred  and  sixty  acres  of  farming  land 
with  the  improvements,  or  one  acre  in  an  incorporated  city  or  town,  occupied  as  the 
residence  of  the  debtor  and  his  family.  Personal  property  of  a  debtor  who  is  the 
head  of  a  family,  consisting  of,  i,  family  Bible,  school-books,  and  family  library  ;  2, 
family  pictures,  and  musical  instruments  used  ;  3,  seat  or  pew  in  church  and  lot  in 
burying  ground  ;  4,  wearing  apparel,  beds,  bedding,  and  bedsteads  used  in  the 
family,  stoves  and  cooking  utensils  necessary  for  the  use  of  the  debtor  and  his  family, 
one  sewing-machine,  all  spinning-wheels  and  looms,  and  all  other  implements  of 
industry  and  other  household  furniture  not  exceeding  in  value  five  hundred  dollars  ; 
5,  two  cows,  ten  hogs,  one  j^oke  of  cx^n,  one  horse  or  mule,  or  in  lieu  of  one  yoke 
of  oxen  and  one  horse  or  mule,  a  span  of  horses  or  mules,  twenty  sheep  and  the  wool 
of  the  same  ;  6,  the  necessarj'  food  for  the  support  of  the  stock  mentioned  for  one 
year,  one  wagon,  cart,  or  dray,  two  plows,  one  drag,  and  other  farm  utensils,  including 
harness  for  teams,  not  exceeding  three  hundred  dollars  in  value;  7,  grain,  meat  and 
other  provisions  necessary  for  one  year,  and  fuel  for  one  year  ;  8,  necessarj'  tools  of 
mechanic,  miner,  or  other  person  used  for  trade  or  business,  and  in  addition  thereto 
stock  in  trade  not  exceeding  four  hundred  dollars  in  value ;  9,  library,  implements, 
and  office  furniture  of  a  professional  man.  If  the  debtor  is  a  resident,  but  not  the 
head  of  a  family,  his  wearing  apparel,  seat  or  pew  in  the  church,  and  lot  in  burying- 
ground,  and  as  above  in  8  and  g.  The  earnings  of  the  debtor  or  personal  service 
for  three  months  are  exempt. 

KENTUCKY. — Actions.  There  is  only  one  form  for  civil  actions,  which  are 
begun  by  filing  with  the  clerk  of  the  court  a  petition,  and  causing  a  summons  to  issui* 
thereon. 

Arrest.  The  defendant  may  be  arrested  and  held  to  bail  at  any  time  before 
judgment,  on  filing  with  the  clerk  an  affidavit  showing,  i,  the  nature  of  the  claim  , 
2,  that  it  is  just;  3,  the  amount  ;  and  4,  that  the  affiant  believes  either  that  the 
defendant  is  about  to  leave  the  State,  and  with  intent  to  defraud  his  creditors  has 
concealed  or  removed  from  the  State  his  property,  so  that  there  will  not  be  enough 
left  to  satisfy  the  plaintiff's  claim,  or  that  the  defendant  has  money  or  securities  or 
evidences  of  debt  and  is  about  to  leave  the  State,  without  leaving  enough  to  satisfy 
the  plaintiff's  claim.     Plaintiff  must  also  give  bond  with  sureties. 

Attachment.  Writ  of  attachment  issues  against  the  property  of  a  defendant  or 
garnishee,  in  an  action  for  the  recovery  of  money,  in  the  following  cases  :  i.  Where 
the  defendant,  or  one  of  them,  is  a  foreign  corporation,  or  non-resident  of  the  State 
(but  in  this  case  only  for  a  debt  or  demand  arising  on  contract  or  a  judgment  or 
award).  2.  Or  has  been  absent  from  the  State  four  months.  3.  Has  departed  from 
the  State  with  intent  to  defraud  his  creditors.  4.  Has  left  his  county  to  avoid 
service.  5.  Conceals  himself  so  that  summons  cannot  be  served  on  him.  6.  Has 
removed  or  is  about  to  remove  his  property  from  the  State,  not  leaving  enough  to 
satisfy  the  plaintiff's  claim  or  claims  of  creditors.       7.   Has  sold  or  disposed  of,  or 


ABSTRACT  OF  THE   COLLECTION  OF  DEBTS.       721 

suffered  to  be  disposed  of,  his  property  with  intent  to  defraud  or  delay  his  creditors, 
or  S,  is  about  to  sell  or  dispose  of  his  property,  with  such  intent.  Attachment  may 
issue,  also,  in  action  for  recovery  of  money  due  on  contract,  judgment,  or  award  if 
defendant  have  not  property  in  the  State  to  satisfy  plaintiff's  demand  and  collection 
will  be  endangered  by  delay.  Also  in  action  to  recover  personal  property  ordered 
to  be  delivered  to  plaintiff  which  has  been  disposed  of  or  concealed  so  that  order 
for   delivery  cannot  be  executed. 

Plaintiff  must  give  security  and  file  an  affidavit  showing  the  nature  of  the  claim, 
that  it  is  just,  the  amount  of  the  same,  and  one  of  the  foregoing  causes. 

Garnishment.  On  return  of  the  execution  with  return  of  "no  property  found," 
the  plaintiff  may  bring  a  suit  against  the  defendant  for  discover}-,  and  bring  in  any 
parties  indebted  to  the  defendant,  or  who  have  property  of  the  defendant,  as  parties 
to  the  suit. 

Judgment  is  not  a  lien  on  defendant's  property. 

Stay  Law.  At  any  time  before  sale  on  execution,  defendant  may  replevy  the 
judgment  for  three  months  by  giving  bond  with  surety. 

Exemptions  of  a  hcnseholder  with  a  family  resident  in  the  State,  on  all  debts 
contracted  after  June  i,  1886,  two  work  beasts,  or  one  and  yoke  of  oxen,  two  plows 
and  gear,  one  wagon,  cart,  or  dray,  and  set  of  gear,  two  axes,  three  hoes,  one  spade, 
one  shovel  ;  two  cows  and  calves  ;  beds,  bedding,  and  furniture  sufficient  for  family 
use  ;  one  loom  and  spinning-wheel,  and  pair  of  cards  ;  all  the  spun  yarn  and  cloth 
manufactured  by  the  family  necessary  for  family  use  ;  carpeting  for  all  family  rooms 
in  use  ;  one  cooking  stove  and  all  cooking  utensils  ;  all  table  ware  and  cutlery  used  by 
the  family  ;  one  table  ;  all  books  not  to  exceed  fifty  dollars  in  value  ;  two  saddles  and 
their  appendages  ;  two  bridles  ;  six  chairs,  or  so  many  as  shall  not  exceed  ten  dollars 
in  value  ;  one  cradle  ;  all  poultry  on  hand  ;  ten  head  of  sheep,  not  to  exceed  twenty- 
five  dollars  in  value  ;  all  wearing  apparel ;  sufficient  provisions  for  the  family  for  one 
year,  or  if  not  on  hand,  other  personal  property  or  growing  crop,  not  to  exceed  forty 
ilollars  in  value  for  each  member  of  the  family  ;  provender  for  live  stock  to  the  value 
of  seventy  dollars  ;  if  not  on  hand,  other  personal  property  not  to  exceed  seventy 
dollars  in  value  ;  all  washing  apparatus  not  to  exceed  fifty  dollars  in  value;  arm?, 
ammunition,  and  equipments  of  a  militia-man  ;  one  sewing-machine  ;  and  all  famil , 
portraits  and  pictures.  Also  dwelling-house  and  land,  not  exceeding  one  thousanil 
dollars  in  value. 

Debts  contracted  prior  to  1SS6  are  subject  to  the  provisions  of  the  exemption 
laws  then  in  force,  which  differ  somewhat  from  the  above. 

In  addition  to  the  above,  there  are  exempt,  under  prior  laws  still  in  force,  tools, 
not  exceeding  one  hundred,  dollars  in  value,  of  any  mechanic  who  is  a  bona  JiJe 
housekeeper  with  a  family  ;  libraries  of  ministers,  professional  libraries  and  instru- 
ments of  physicians,  surgeons,  and  attorneys,  not  exceeding  five  hundred  dollars  in 
value  ;  and  wages,  not  exceeding  fifty  dollars  of  bona  fide  housekeepers  with  families, 
except  for  debts  contracted  for  food,  raiment,  or  house  rent  for  family. 

LOUISIANA.  —  Actions  are  begun  by  petition,  stating  all  the  facts  necessary 
to  the  cause  and  identification  of  the  parties  on  which  a  citation  issues,  addressed 
to  the  defendant. 

Arrest.     The  defendant  cannot  be  arrested  to  secure  pavment  of  a  debt,  but 
only  to  secure  his  person  to  answer  to  the  suit.      A  non-resident   cannot  be  arrested 
unless  it  appear  on  oath  that  he  has  absconded  from  his  residence  in  his  own  State. 
46 


722        ABSTRACT   OF   THE    COLLECTION  OF  DEBTS. 

Plaintiff  must  tile  affidavit  of  amount  due,  that  he  believes  defendant  is  about 
to  remove  permanently  from  the  State  without  leaving  sufficient  property  to  satisfy 
his  demand  and  that  he  asks  this  remedy,  not  to  vex  defendant  but  only  to  secure  his 
demand.     He  must  also  give  security  to  defendant. 

Attachment.  Writ  of  attachment  issues  when  the  defendant  resides  out  of  the 
State,  or  has  left  or  is  about  to  leave  the  State  permanently  ;  or  when  he  conceals 
himself  to  avoid  service  of  summons  ;  or  when  he  has  assigned  or  disposed  of,  or  is 
about  to  assign  or  dispose  of,  his  property,  with  intent  to  defraud  his  creditors  or 
give  an  unfair  preference  ;  or  when  he  has  converted,  or  is  about  to  convert  his 
property  into  money,  with  intent  to  conceal  the  same  ;  or  when  he  is  about  to  remove 
his  property  from  the  State  before  the  debt  becomes  due.  The  plaintiff  must  file  a 
sworn  petition,  setting  forth  the  facts  which  render  the  writ  necessary,  and  the 
nature  and  amount  of  the  claim,  and  give  bond  with  sureties.  Writs  of  sequestration 
and  provisional  seizure  issue  in  certain  cases. 

Garnishment.  In  cases  of  attachment,  or  in  proceedings  after  judgment,  where 
the  creditor  believes  that  any  other  parties  have  property  of  the  defendant,  or  are 
indebted  to  him,  he  may  cite  them  in  as  parties. 

Judgment  acts  as  a  mortgage  on  all  real  estate  of  the  debtor,  from  the  date  of 
record  in  the  office  of  the  Parish  Recorder.  It  is  prescribed,  and  ceases  to  be  a  lien 
in  ten  years. 

Stay  Law.     There  is  no  stay  of  execution  in  Louisiana. 

Exemptions.  A  homestead  consisting  of  land  with  the  buildings  occupied  by 
the  debtor  as  a  residence  and  owned  by  him,  when  he  has  a  family  dependent  on  him, 
together  with  a  certain  amount  of  stock  ;  but  the  homestead  in  no  case  to  be  worth 
more  than  two  thousand  dollars,  and  no  homestead  is  allowed  if  the  wife,  in  her  own 
right,  owns  property  to  the  amount  of  two  thousand  dollars.  A  written  declaration 
of  homestead  must  be  executed  by  the  person  claiming  the  benefit  of  the  same,  and 
recorded  in  the  book  of  mortgages  for  the  parish  where  the  homestead  is  situated. 
Also  are  exempt  the  clothes  and  linen  of  debtor  or  his  wife,  his  beds,  bedding,  and 
bedsteads,  or  those  of  his  family,  his  arms  and  military  accoutrements,  the  tools, 
instruments,  books,  and  sewing-machines  necessar}'  for  the  trade  or  calling  by  which 
the  debtor  makes  a  living,  cooking-stoves  and  utensils,  dining-table  and  chairs, 
dishes,  knives  and  forks,  etc.,  wash-tubs,  smoothing-irons  and  ironing-furnaces, 
family  portraits,  belonging  to  the  debtor,  and  musical  instruments  in  use  ;  income  of 
dotal  property,  money  due  for  the  salary  of  an  office,  and  laborer's  wages. 

MAINE. — Actions  are  begun  by  original  writ,  framed  to  attach  the  goods  and 
estate  of  the  debtor,  and  for  want  thereof  his  body,  or  by  summons  with  or  without 
an  order  of  attachment,  in  the  county  where  either  party  lives,  unless  it  be  a  real 
action,  when  it  must  be  brought  where  the  land  lies. 

Arrest.  Defendant  may  be  arrested  on  mesne  process  in  an  action  of  tort,  and 
in  an  action  of  contract,  when  the  debt  is  over  ten  dollars,  exclusive  of  interest,  and 
the  debtor  is  about  to  depart  permanently  from  the  State,  with  his  property 
exceeding  the  amount  required  for  immediate  support  on  affidavit  by  the  creditor  or 
his  agent  to  the  above  effect.  He  may  also  be  arrested  on  execution  in  actions  for 
torts  but  not  in  actions  founded  on  contract  unless  in  special  proceedings  for 
disclosure  he  fails  to  appear  for  examination,  or  to  obtain  the  benefit  of  disclosure 
proceedings  by  reason  of  fraud. 

Attachment.     All  property  not  exempt   may   be  attached   without   affidavit, 


ABSTRACT  OF  THE   COLLECTION    OF  DEBTS. 


■^3 


bond,  or  order  of  court,  and  it  continues  under  lien  for  thirty  days  after 
judgment. 

Garnishment  in  this  State  is  called  Trustee  Process.  Personal  actions, 
except  detinue,  replevin,  malicious  prosecution,  slander,  libel,  and  assault  and 
battery,  may  be  begun  by  such  process,  when  the  trustee  has  any  property  or  effects 
of  the  defendant,  or  is  indebted  to  him,  but  the  wages  of  the  defendant  for  the 
month  preceding,  not  exceeding  twenty  dollars,  are  exempt,  except  for  necessaries. 

Judgment.  There  is  no  lien  of  judgment,  its  place  being  supplied  by  the  lien 
of  attachment. 

Exemptions.  The  homestead  of  a  householder  to  the  value  of  five  hundred 
dollars,  provided  a  certificate  has  been  filed  in  the  registry  of  deeds,  and  one  cemeterj- 
lot.  Of  personal  property,  the  debtor's  wearing  apparel,  necessary  household 
furniture  not  exceeding  in  value  one  hundred  dollars,  one  bed,  bedstead  and  bedding 
for  everj'  two  persons,  family  portraits.  Bibles  and  school-books,  a  copy  of  the 
State  Statutes,  and  library  not  exceeding  one  hundred  and  fifty  dollars  in  value,  a 
pew  in  a  meeting-house,  one  cooking-stove,  and  iron  stoves  used  for  heating,  char- 
coal, five  tons  of  anthracite  coal,  fifty  bushels  of  bituminous  coal,  twelve  cords  of 
wood,  ten  dollars'  worth  of  lumber,  wood,  or  bark,  produce  of  farm  until  harvested, 
one  barrel  of  flour,  thirty  bushels  of  corn  and  grain,  potatoes  for  debtor  and  family, 
flax  raised  on  half  an  acre  of  ground,  and  articles  manufactured  therefrom  for  the 
family,  tools  of  trade,  fifty  dollars  in  material  and  stock,  sewing-machine,  one  pair  of 
working  cattle,  or  pair  of  mules,  or  one  or  two  horses,  not  exceeding  in  value  three 
hundred  dollars,  and  hay  for  the  winter,  one  harness  worth  twenty  dollars  for  each 
horse  or  mule,  a  horse-sled  or  ox-sled,  two  swine,  one  cow  and  heifer,  or  two  cows  if 
no  oxen,  horse  or  mule,  ten  sheep,  and  the  lambs  and  wool  from  them  and  hay  for 
the  winter  ;  fifty  dollars'  worth  of  domestic  fowls  ;  a  plow,  cart,  harrow,  and  yoke, 
two  chains,  a  mowing  machine,  and  one  boat  of  two  tons,  employed  in  fishing  ;  and 
hfe  and  accident  insurance  policies,  except  excess  of  annual  cash  premiums  for  two 
years  above  one  hundred  and  fifty  dollars. 

MARYLAND. — Actions  are  begun  as  at  common  law,  and  the  common  law 
forms  of  actions  remain  as  simplified  by  the  Code  of  Procedure. 

Arrest  for  debt  is  abolished. 

Attachment  may  issue  where  the  defendant  is  a  non-resident,  or  where  he  ab- 
sconds, on  affidavit  that  the  debt  is  a  bona  fide  one,  and  that  defendant  is  a  non-resi- 
dent or  has  absconded,  together  with  the  evidences  of  the  debt.  It  may  also  issue  on 
an  original  process  based  on  an  account,  note,  bond,  or  other  evidence  of  debt,  on  an 
affidavit  that  the  defendant  is  really  indebted,  and  is  about  to  leave  the  State,  or  that 
he  has,  or  is  about  to  assign  or  dispose  of  his  property  with  intent  to  defraud  his 
creditors,  or  that  he  fraudulently  contracted  the  debt  for  which  the  action  is  brought, 
or  that  the  defendant  has,  or  is  about  to,  remove  his  property  out  of  the  State  with 
intent  to  defraud  his  creditors.  Attachment  may  issue  where  two  summonses  have 
been  returned  "  iion  est,"  on  proof  by  the  plaintiff  of  his  claim  by  affidavit  and  the 
production,  if  any,  of  written  evidence  of  the  debt,  also  against  non-resident  or  abscond- 
ing debtors  in  case  of  actions  for  false  imprisonment  or  illegal  arrest,  for  the  amount  of 
damages  claimed.  The  salary  of  a  public  officer,  or  employe  of  a  municipal  corpor- 
ation, funds  in  hands  of  government  due  its  agents,  or  property  or  funds  in  custody 
of  the  law  or  under  control  of  court  cannot  be  attached.  Wages  and  salary  not  due 
at  the  time  of  attachment,  cannot  be  attached,  and  one  hundred  dollars  is  exempt  out 
of  what  is  due. 


724 


ABSTRACT  OF  THE   COLLECTION  OF  DEBTS. 


Garnishment  may  issue  against  tlie  property  of  the  defendant  in  the  hands  of 
any  person  by  attachment.     {See  Attachment.) 

Judgment  is  a  lien  on  real  estate  of  the  defendant  acquired  after  judgment,  as 
well  as  what  was  owned  by  him  at  the  date  of  rendition,  and  becomes  a  lien  in  other 
counties  by  transferring  it  to  such  counties  ;  bears  interest  at  six  per  cent.  Judgments 
remain  a  lien  for  twelve  years. 

Stay  Laws.  On  all  judgments  rendered  by  the  circuit  courts  for  the  counties 
the  second  term  after  the  defendant  has  been  summoned,  he  is  entitled  to  stay  of  ex- 
ecution until  the  first  Thursday  of  the  following  term.  But  judgments  rendered  by 
the  law  courts  of  Baltimore  city  are  not  subject  to  this  stay. 

Judgments  may  be  stayed  by  stiperscdeas  for  six  months,  sureties  being  given  for 
the  amount. 

Exemptions.  Wearing  apparel,  books,  and  tools  used  for  trade  or  earning  a  liv- 
ing, and,  except  under  executions  upon  judgments  for  seduction  or  breach  of 
promise  to  marry,  one  hundred  dollars'  worth  of  other  property,  selected  by  the  debt- 
or. A  chose  in  action,  or  any  intangible  property,  real  or  personal,  except  stocks,  or 
equitable  interests  in  personal  property  cannot  be  taken  in  execution.  There  is  no 
homestead  exemption. 

MASSACHUSETTS.— Actions  are  begun  by  original  writ,  framed  to  attach 
the  goods  or  estate  of  the  defendant,  or  for  want  thereof,  to  take  his  body,  or  by 
summons,  with  or  without  an  order  of  attachment,  in  either  case  accompanied  by  a 
separate  summons  to  be  served  on  the  defendant,  may  be  brought  in  the  county 
where  either  party  lives  unless  it  is  to  recover  real  estate,  when  it  must  be  brought 
where  the  land  lies. 

Arrest.  Defendant  may  be  arrested  on  mense  process  in  actions  of  contract  on 
the  plaintiff  making  affidavit  before  the  proper  officer, — (i)  that  he  has  good  cause  of 
action,  and  expects  to  recover  more  than  twenty  dollars,  and  (2)  that  the  defendant, 
to  the  best  of  his  belief,  has  property  not  exempt,  that  he  does  not  intend  to  apply  to 
the  payment  of  the  debt,  and  (3)  that  he  believes  that  the  defendant  intends  to  leave  thi; 
State.  Or  (instead  of  2  and  3),  that  the  defendant  is  an  attorney-at-law,  and  that  the 
debt  is  for  money  collected  on  behalf  of  the  plaintiff,  and  that  the  defendant  unreason  . 
ably  neglects  to  pay  the  same.  And,  in  an  action  of  tort,  by  making  affidavit  that  hi', 
believes  and  has  reason  to  believe  that  he  has  a  good  cause  of  action  against  the  de 
fendant  and  that  he  expects  to  recover  at  least  one-third  the  damages  named  in  tho 
writ,  and  that  he  believes  the  defendant  intends  to  leave  the  State  so  that  execution  if 
obtained  cannot  be  served  upon  him.  Defendant  may  be  arrested  on  execution,  in  an 
action  of  tort,  without  an  affidavit,  and  in  an  action  of  contract,  where  the  damages, 
exclusive  of  costs,  amount  to  twenty  dollars  or  more  on  affidavit  (i)  that  the  debtor 
has  property  not  exempt  which  he  does  not  intend  to  apply  to  the  payment  of  the 
debt ;  (2)  that  since  the  debt  was  contracted  or  the  cause  of  action  accrued,  the  debt- 
or has  fraudulently  conveyed  or  concealed  his  property  with  a  design  to  secure  the 
same  to  his  own  use  or  to  defraud  creditors  ;  (3)  that  since  the  debt  was  contracted, 
or  cause  of  action  accrued,  the  debtor  has  lost  one  hundred  dollars  or  more  in  illegal 
gambling;  (4)  that  since  the  debt  was  contracted  the  debtor  has  willfully  misspent  his 
property  so  as  to  be  able  to  swear  that  he  has  no  property  not  exempt;  (5)  that  the 
debtor  contracted  the  debt  with  an  intention  not  to  pay  it;  (6)  that  the  debtor  is  an 
attorney-at-law,  and  neglects  unreasonably  to  pay  money  collected  by  him  for  the 
creditor. 


ABSTRACT  OF  THE   COLLECTION  OF  DEBTS.       725 

On  an  application  based  on  the  first  of  these  grounds  unless  it  appears  that  the 
debtor  is  about  to  leave  the  State  the  magistrate  must  first  issue  an  order  of  notice  to 
the  debtor  to  appear  and  submit  to  examination  touching  his  estate.  If  on  such  ex- 
amination it  appears  that  he  has  property  not  exempt  he  will  be  required  to  assign 
the  same  for  the  benefit  of  the  creditor. 

If  he  fails  to  appear  or  to  obey  any  lawful  order  of  the  magistrate  his  arrest  on 
the  execution  will  be  authorized. 

Attachment.  All  goods  and  estate,  real  and  personal,  may  be  attached  without 
any  affidavit,  and  the  attachment  continues  as  a  lien  for  thirty  days  after  judgment. 
Attachments  may  be  dissolved,  by  the  defendant,  by  giving  bond  to  pay  all  daniages 
recovered  with  costs,  or  to  pay  the  appraised  value  of  the  property  released. 

Garnishment  same  as  Trustee  Process.  All  actions  except  replevin,  tort  for 
malicious  prosecution,  libel  and  slander,  and  assault  and  battery,  may  be  begun  by 
trustee  process;  and  any  one,  including  a  corporation  who  is  indebted  to  the  defend- 
ant, or  who  has  property  of  the  defendant,  may  be  summoned. 

Judgjient  is  not  a  lien  {see  Attachment),  but  bears  interest  from  the  date  of 
•  endition,  at  six  per  cent.     There  is  no  stay  of  execution. 

Exemptions.  The  homestead  of  a  householder  having  a  family,  to  the  value  of 
\  'ight  hundred  dollars  in  the  farm  or  lot  of  land  and  buildings  owned  and  occupied 
by  him  as  a  residence,  provided  the  design  to  hold  it  as  such  has  been  duly  recorded. 
Necessary  wearing  apparel  for  the  family,  one  bedstead  and  bedding  for  every  two 
persons,  one  iron  stove  used  for  warming  the  dwelling-house,  and  fuel  for  the  same 
not  exceeding  twenty  dollars  in  value,  other  necessary  household  furniture  not  exceed- 
ing three  hundred  dollars  in  value  ;  Bibles,  school-books,  and  library  used  by  himself 
or  family,  not  exceeding  fifty  dollars  in  value  ;  one  cow,  six  sheep,  one  swine  and  two 
tons  of  hay;  tools,  implements,  and  fixtures  necessary  for  business  or  trade,  not  ex- 
ceeding in  value  one  hundred  dollars  ;  materials  and  stock  designed  and  necessary 
for  his  trade  or  business,  not  exceeding  one  hundred  dollars  in  value  ;  provisions 
necessary  and  procured  for  debtor  and  his  family,  not  exceeding  fifty  dollars  in  value; 
one  pew  in  church  ;  the  boats,  tackle,  and  nets  of  fishermen, actually  used  by  them 
for  their  business,  to  thf  value  of  one  hundred  dollars  ;  the  uniform,  arms,  and  ac- 
coutrements of  a  militia  man  ;  rights  of  burial  and  tombs,  one  sewing-machine  not 
exceeding  one  hundred  dollars  in  value,  and  shares  in  certain  cooperative  associations 
not  exceeding  twenty  dollars  in  value.  Wages  to  the  amount  of  twenty  dollars,  unless 
the  debt  was  incurred  for  neccessaries,  and  then  ten  dollars  are  also  exempt. 

MICHIGAN. — Actions  are  substantially  the  same  as  at  common  law,  and  are 
begun  by  original  writ.  The  assignee  of  any  bond,  note,  or  other  chose  in  action 
may  sue  in  his  own  name. 

Arrest.  Personal  actions  on  contract  may  be  begun  by  a  writ  of  capia  ad  re- 
spondeiidii/n,  only  to  recover  damages  for  breach  of  promise,  or  for  money  collected 
by  a  public  officer,  or  for  misconduct  or  neglect  in  office,  or  in  any  professional  emi- 
ployment,  on  an  affidavit  being  attached  to  the  writ  on  behalf  of  the  plaintiff,  stating 
that  he  has  good  cause  of  action,  and  believes  that  he  is  entitled  to  recover  more 
than  one  hundred  dollars.  Personal  actions  may  also  be  begun  by  capias  in  cases  of 
claims  for  damages  other  than  those  arising  on  contract,  where  an  order  for  bail  is 
indorsed  on  the  writ  by  a  judge  of  the  court  from  which  the  process  issues,  or  a  cir- 
cuit court  commissioner. 

Attachment.     The  creditor  may  proceed  at  any  time  before  judgment,  by  at- 


726       ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 

tachment  on  filing  an  affidavit  stating  the  indebtedness,  the  amount  which  must  exceed 
one  hundred  dollars,  and  that  it  is  due  on  a  contract,  together  with  one  of  the  follow- 
ing causes:  i.  That  the  defendant  has  absconded;  or  is  about  to  abscond,  or  is  con- 
cealed, to  the  injury  of  his  creditors.  2.  That  defendant  has  assigned,  concealed, 
or  disposed  of,  or  is  about  to  assign  or  dispose  of  his  property  with  intent  to  defraud 
his  creditors.  3.  That  the  defendant  has  or  is  about  to  remove  his  property  from  the 
State,  with  intent  to  defraud  his  creditors.  4.  That  the  defendant  fraudulently  con- 
tracted the  debt.  5.  That  he  is  a  nofi-resident,  and  has  been  so  for  three  months 
p/evious  to  making  the  affidavit.  6.  That  he  is  a  foreign  corporation.  Attachment 
is  a  lien  on  real  estate  from  the  date  of  depositing  a  certified  copy  in  the  registry  of 
deeds  for  the  county  where  the  lands  lies.  Attachment  by  order  of  court  may  issue 
oil  either  of  the  grounds  specified  in  subdivisions  i  and  2  before  debt  is  due, in  which 
case  the  affidavit  must  show  when  it  will  be  due  and  the  reasons  for  the  application. 

Actions  for  tort  against  non-residents  may  be  commenced  by  attachment. 

Garnishment.  In  all  actions  in  justices'  courts  or  circuit  courts,  at  the  com- 
mencement of  the  suit,  or  at  any  time,  the  plaintiff  may  have  a  writ  of  garnishment 
on  filing  with  the  clerk  an  affidavit  that  he  believes  that  any  person  (naming  him)  has 
property,  effects,  or  credits  of  the  defendant,  or  is  indebted  to  him,  and  that  he  is  in 
danger  of  losing  the  same,  unless  garnishment  issues. 

Judgment  bears  interest  at  the  rate  of  six  per  cent.,  unless  it  is  on  a  written  in- 
strument embodying  a  different  rate,  in  which  case  such  rate  is  followed  not  exceed- 
ing ten  per  cent.  Judgment  becomes  a  lien  on  real  property  from  the  levy  of  execu- 
tion, and  from  the  time  of  filing  a  notice  of  such  levy,  containing  the  names  of  the 
parties,  description,  and  date  of  the  levy,  in  the  office  of  the  registry  of  deeds  for  ths 
county  where  the  land  lies. 

Stay  Laws.  Defendant  may  have  a  stay  of  execution  in  justices'  courts  within 
five  days  after  the  justice  is  authorized  to  issue  execution,  by  filing  a  bond  with  good 
surety,  as  follows:  for  four  months  after  commencement  of  suit  where  the  execution 
does  not  exceed  fifty  dollars,  and  six  months  where  it  does  exceed  fifty  dollars. 

Exemptions,  i  .  Spinning-wheels,  weaving  looms,  and  stoves  put  up  and  kept 
for  use.  2.  Seat  or  pew  in  church.  3.  Cemeteries,  tombs  and  rights  of  burial  whi'e 
in  use.  4.  Arms  and  accoutrements  required  by  law,  and  all  wearing  apparel.  5  . 
Library  and  school-books  of  each  member  of  the  family,  not  exceeding  in  value  or  it 
hundred  and  fifty  dollars,  and  family  pictures.  6.  To  every  householder,  ten  shee  p 
and  fleeces  (or  the  yarn  or  cloth  from  the  same),  two  cows,  five  swine,  and  the  pro- 
visions and  fuel  for  the  comfort  of  the  family  for  six  months.  7.  To  a  householder, 
all  household  goods,  furniture  and  utensils,  not  exceeding  in  value  two  hundred  and 
fifty  dollars.  8.  Tools,  implements,  materials,  stock,  apparatus,  team,  vehicles,  horses, 
harness  or  other  things  which  enable  a  person  to  carry  on  the  business  in  which  he  is 
engaged,  not  exceeding  in  value  two  hundred  and  fifty  dollars.  9.  Sufficient  grain, 
hay,  feed,  and  roots,  whether  growing  or  otherwise,  for  keeping  all  animals,  exempt 
for  six  months.  10.  Sewing-machine.  Also  a  homestead  of  forty  acres,  and  the 
dwelling-house  and  appurtenances  not  in  a  city,  or  village,  or  instead,  one  lot  in  a 
city,  or  village,  and  the  dwelling-house  thereon,  owned  and  occupied  as  a  residence, 
not  exceeding  in  either  case  fifteen  hundred  dollars  in  value. 

Only  household  goods,  library,  pictures,  rights  in  cemeteries,  one  cow,  and  pro- 
visions and  fuel  for  one  month,  not  exceeding  five  hundred  dollars  in  value,  are  ex- 
empt from  execution  on  judgments  for  labor. 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 


■27 


MINNESOTA. —  Actions.  All  distinctions  are  abolished,  and  there  is  but 
one  form  for  all  actions,  which  are  begun  by  filing  a  complaint  and  issuing  summons 
to  the  defendant,  and  must  be  prosecuted  by  the  real  party  in  interest. 

Attachments  may  be  had  at  any  time  in  actions  for  the  recovery  of  money, 
and  are  sued  out  on  affidavit  specifying  the  cause  and  amount  and  grounds  for  the 
action,  and  that  the  defendant  is  a  foreign  corporation,  or  a  non-resident,  or  has  de- 
parted from  the  State  with  intent  to  defraud  or  delay  creditors,  or  to  avoid  the  ser- 
vice of  the  summons,  or  that  defendant  keeps  himself  secreted  with  like  intent,  or 
has  assigned,  secreted,  or  disposed  of  his  property,  or  is  about  to  do  so,  with  intent 
to  defraud  his  creditors,  or  that  the  debt  was  fraudulently  contracted.  Plaintiff  must 
also  give  security  for  costs  and  damages. 

Arrest  for  debt  is  abolished. 

Garnishment  is  allowed  in  actions  on  contracts,  on  filing  an  affidavit  at  any 
time  before  or  after  judgment,  stating  that  it  is  believed  that  any  person  (naming 
him)  has  property  of  the  defendant,  or  is  indebted  to  him  in  a  sura  exceeding 
twenty-five  dollars  if  the  action  is  in  a  court  of  record,  or  ten  dollars  in  a  justices' 
court. 

Judgment  is  a  lien,  in  the  county  where  the  cause  was  tried,  from  docketing  the 
same,  and  in  other  counties  from  the  date  of  filing  a  transcript  in  the  office  of  the 
District  Court,  and  continues  a  lien  for  ten  years. 

Stay  Laws.  Stay  of  e.xecution  may  be  had  in  justices'  courts,  as  follows,  in 
addition  to  ten  days  allowed  for  appeal :  On  sums  not  exceeding  ten  dollars,  one: 
month  ;  not  exceeding  twenty-five  dollars,  two  months  ;  between  twenty-five  and. 
fifty  dollars,  three  months  ;  between  fifty  and  seventy-five  dollars,  four  months  ;  and 
over  seventy-five  dollars,  six  months.  Debtor  must  file  a  bond,  with  good  surety, 
within  ten  days  after  judgment  is  rendered,  conditioned  to  pay  amount  of  judgment 
with  seven  per  cent,  interest.  In  district  courts,  on  judgments  for  recovery  of 
money,  stay  may  be  had  for  six  months  on  giving  security  for  payment  of  judgment 
with  interest  at  twelve  per  cent. 

Exemptions,  i.  Family  Bible.  2.  Family  pictures,  school-books,  or  library, 
and  musical  instruments  for  use  of  family.  3.  Seat  or  pew  in  church.  4.  Lo'; 
in  burying-ground.  5.  Wearing  apparel,  beds,  bedsteads,  and  bedding  kept  and 
used  in  the  family,  stoves  and  appendages,  and  cooking  utensils,  and  all  other  house- 
hold furniture  not  enumerated,  and  not  exceeding  five  hundred  dollars  in  value.  6. 
Three  cows,  ten  swine,  one  yoke  of  oxen,  and  one  horse,  or  in  lieu  of  oxen  and  horse, 
a  span  of  horses  or  mules,  twenty  sheep  and  the  wool  therefrom,  either  raw  or  man- 
ufactured, food  for  the  stock  for  one  year,  one  wagon,  cart,  or  dray,  one  sleigh,  two 
plows,  one  drag  and  other  farm  utensils,  not  exceeding  three  hundred  dollars 
in  value.  7.  One  sewing-machine.  8.  Grain  necessary  for  one  year's  seed, 
not  exceeding  fifty  bushels  of  wheat,  fifty  bushels  of  oats,  thirty  bushels  of  barley, 
fifteen  bushels  of  potatoes,  three  bushels  of  corn,  and  binding  material  used 
in  harvesting  crop.  9.  Provisions  and  fuel  for  debtor  and  his  family  for  one  year. 
10.  Tools  and  instruments  of  mechanic,  miner,  or  other  person,  used  in  carrying  on 
his  trade,  and  in  addition,  stock-in-trade,  not  exceeding  four  hundred  dollars  in 
value,  and  library  and  implements  of  a  professional  man.  Also  the  wages  of 
any  laboring  man  or  woman,  or  their  minor  children,  not  exceeding  twenty-five 
dollars,  for  thirty  days  preceding  the  service  of  process.  The  presses,  type, 
and  other   implements   used   in   the   printing   or  publication  of   a  newspaper,   not 


728 


ABSTRACT  OF   THE   COLLECTION   OF  DEBTS. 


exceeding  two  thousand  dollars  in  value,  and  stock-in-trade  not  exceeding  four 
hundred  dollars,  are  also  exempt.  Also  a  homestead  of  eighty  acres,  and  the  dwell- 
ing-house and  appurtenances,  not  in  an  incorporated  city,  town,  or  village,  or  in 
lieu  thereof,  one  lot  in  an  incorporated  city,  town,  or  village  having  over  5,000 
inhabitants,  or  one-half  an  acre  of  land  in  a  city,  town,  or  village  having  less 
than  5,000  inhabitants,  with  the  house  thereon. 

MISSISSIPPI. —  Actions  are  begun  by  filing  a  declaration  and  issuing  sum- 
mons, and  the  forms  of  actions  and  modes  of  proceeding  are  substantially  as  at  com- 
mon law. 

Attachment.  Remedy  by  attachment  applies  to  all  liquidated  debts,  and 
to  all  claims  for  damages  for  breach  of  contract,  and  process  issues  on  an  affidavit 
filed  by  the  creditor  or  his  agent,  stating  the  nature  and  amount  of  the  claim,  and 
one  or  more  of  the  following  causes  :  i.  That  defendant  is  a  foreign  corporation,  or 
a  non-resident.  2.  That  he  has  removed,  or  is  about  to  remove,  himself  or  property 
out  of  the  State.  3.  Or  so  absconds  or  conceals  himself  that  service  cannot  be  made 
on  him.  4.  That  he  contracted  the  debt  or  incurred  the  obligation  in  conducting 
I  he  business  of  a  ship,  steamboat,  or  other  water  craft  in  some  of  the  navigable 
iH'aters  of  the  State.  5.  Or  that  he  has  property  which  he  conceals,  and  refuses  to 
i\pply  to  the  payment  of  his  debts.  6.  Or  that  he  has  assigned  or  disposed  of,  or  is 
jibout  to  assign  or  dispose  of,  his  property  with  intent  to  defraud  creditors,  or  to  give 
u  preference.  7.  Or  that  he  has  or  is  about  to  convert  his  property  into  money 
hi  order  to  place  it  beyond  the  reach  of  his  creditors.  8.  Or  that  he  fraudulently 
."ontracted  the  debt. 

Attachment  may  issue  for  a  debt  not  due  if  sued  on  either  the  sixth,  seventh, 
or  eighth  ground,  if  the  creditor  affirm  that  he  has  just  cause  to  suspect  and  verily  be- 
lieves that  the  debtor  will  remove  himself  or  his  effects  out  of  the  State  before  said 
debt  will  become  payable,  with  intent  to  hinder,  delay,  or  defraud  his  creditors, 
or  that  he  has  removed  with  like  intent,  leaving  property  in  the  State. 

Plaintiff  must  also  give  security  for  damages  and  costs. 

Arrest.     There  is  no  arrest  for  debt. 

Garnishment.  The  writ  of  attachment  may  be  levied  on  all  property  of  the 
defendant  wherever  it  is  found,  and  if  any  third  person  has  any  property,  effects,  or 
credits  of  the  defendant,  or  is  indebted  to_  him,  he  may  be  summoned  as  garnishee. 

Judgment  bears  interest  at  six  per  cent.,  unless  there  was  a  stipulation  in 
the  contract  for  a  different  rate,  in  which  case  such  rate,  not  exceeding  ten  per  cent., 
is  allowed.  Judgment  is  a  lien  on  all  property  in  the  county  where  rendered, 
from  the  date  of  rendition,  if  enrolled,  and  in  other  counties  from  the  date  of 
enrolling  the  same  in  the  office  of  the  clerk  of  the  court  for  such  county.  The  time 
of  limitation  for  judgments  is  seven  years. 

Stay  Laws.  Stay  of  execution  is  allowed  in  justices'  courts  on  giving  bond 
with  surety  as  follows :  On  sums  not  exceeding  fifty  dollars,  thirty  days  ;  on  sums 
over  fifty  dollars,  sixty  days. 

Exemptions,  i.  Tools  of  a  mechanic  necessary  for  his  trade.  2.  Agricultural 
implements  of  a  farmer  necessary  for  two  male  laborers.  3.  Implements  of  a  laborer 
necessary  for  his  usual  employment.  4.  Books  of  student  for  educational  purposes. 
5.  Wearing  apparel.  6.  Library  of  an  attorney,  physician,  or  minister,  not 
exceeding  two  hundred  and  fifty  dollars  in  value,  and  instruments  of  a  surgeon 
or  dentist  to  a  like  value.     7.   Arms  and  accoutrements  of  militia  men.     8.  Globes, 


ABSTRACT  OF  THE   COLLECTION  OF  DEBTS.       720 

books,  and  maps  of  a  teacher.  And  also  of  the  property  of  each  head  of  a  family, 
one  yoke  of  oxen,  or  two  work  horses  or  mules,  two  cows  and  calves,  five  head  of 
stock  hogs,  five  sheep,  one  hundred  and  fifty  bushels  of  corn,  three  hundred  bundles 
of  fodder,  ten  bushels  of  wheat  or  rice,  two  hundred  pounds  of  pork  or  other  meat, 
one  cart  or  wagon  not  exceeding  one  hundred  dollars  in  value,  one  sewing-machine, 
and  household  and  kitchen  furniture  not  exceeding  one  hundred  dollars  in  value, 
growing  crops,  one  saddle  and  bridle,  fifty  bushels  of  cotton  seed,  forty  gallons 
of  molasses  or  sorghum,  and  one  thousand  stalks  of  Louisiana  cane.  One  hundred 
dollars  of  a  laborer's  or  mechanic's  wages  are  also  exempt.  For  residents  in  cities, 
towns,  and  villages,  there  is  exempt  personal  property  to  be  selected  by  the  debtoi , 
not  exceeding  two  hundred  and  fifty  dollars  in  value. 

Also  to  every  householder  having  a  family,  a  homestead  not  exceeding  one 
hundred  and  sixty  acres  in  extent,  or  two  thousand  dollars  in  value. 

No  property  is  exempt  from  execution  for  the  purchase  money  of  the  same,  or  for 
taxes,  materials  furnished  therefor,  or  for  labor  performed  thereon. 

MISSOURI. —  Actions  are  begun  first,  by  filing  with  the  clerk  a  petition 
setting  forth  the  cause  of  action,  and  the  remedy  sought,  and  the  voluntary  appear- 
'ince  of  the  other  party,  or,  second,  by  filing  such  petition,  and  suing  out  thereon  a 
iiimmons  against  the  person,  or  an  attachment  against  property. 

Arrest.     There  is  none  for  debt. 

Attachment  may  be  had,  i.  Where  the  defendait  is  a  non-resident.  2.  Where 
ihe  defendant  is  a  foreign  corporation.  3.  Where  the  defendant  conceals  himself 
50  that  service  cannot  be  had  on  him.  4.  Where  he  has  absconded  or  absented  him- 
self so  that  summons  cannot  be  served  on  him.  5.  Where  defendant  is  about 
to  remove  his  property  from  the  State  with  intent  to  defraud,  hinder,  or  delay 
his  creditors.  6.  Where  defendant  is  about  to  remove  out  of  the  State.  7.  Where  de- 
fendant has  fraudulently  conveyed  his  property  so  as  to  hinder  or  delay  his  creditors. 
8.  Where  defendant  has  fraudulently  concealed,  removed,  or  disposed  of  his 
property  with  a  like  intent.  9,  10.  Where  he  is  about  to  fraudulently  convey 
or  conceal  his  property  with  like  intent.  11.  Where  cause  of  action  accrued  out  of 
the  State,  and  the  defendant  has  absconded,  or  removed  his  property  to  this  State. 
12.  Where  the  damages  sought  are  for  injuries  arising  from  commission  of  a  felony 
or  misdemeanor,  or  the  seduction  of  a  fem.ale.  13.  Where  the  defendant  has  failed 
to  pay  the  price  of  an  article  delivered,  which  by  contract  he  was  bound  to  pay 
for  on  delivery.  14.  Where  the  debt  was  fraudulently  contracted.  Plaintiff 
must  file  an  affidavit  stating  the  nature  and  amount  of  his  claim,  and  his  belief  that 
one  or  more  of  the  above  causes  are  true,  and  give  bond  for  damages  and  costs. 
Attachments  may  be  nad  for  a  debt  not  yet  due  on  any  of  the  groi;nds  above 
specified,  except  the  first  four. 

Garnishment.  The  writ  of  attachment  may  be  served  on  any  one  having 
property  of,  or  who  is  indebted  to  the  defendant,  or  who  may  be  named  by  the 
plaintiff  as  a  garnishee.  The  same  may  be  done  on  execution,  where  insufficient 
property  of  the  defendant  is  found  to  satisfy  the  claim. 

Judg.ment  is  a  lien  from  the  date  of  his  rendition  in  the  county  where  rendered, 
and  becomes  a  lien  on  real  estate  in  any  other  county  by  filing  a  transcript  in  the 
office  of  the  clerk  of  the  circuit  court  for  such  county,  and  it  extends  t6  real  estate 
acquired  after  the  rendition  or  filing  of  transcript,  as  well  as  to  what  was  owned  at 
the  time,  and  it  continues  for  three  years.     Judgments  bear  interest  at  six  per  cent., 


730       ABSTRACT  OF   THE  COLLECTION  OF  DEBTS. 

unless  there  was  another  rate  expressed  in  the  contract,  in  which  case  such  rate  is 
taken,  not  exceeding  ten  per  cent.     There  is  no  stay  of  execution  except  on  appeal. 

Exemptions.  To  every  head  of  a  family,  i.  Ten  head  of  choice  hogs,  ten  head 
of  choice  sheep,  and  produce  in  wool,  yarn  or  cloth,  two  cows  and  calves,  two  plows, 
one  axe,  one  hoe,  one  set  of  plow  gears,  and  all  necessary  farming  implements  for 
one  man.  2.  Two  working  animals  and  feed  to  the  value  of  twenty-five  dollars. 
3.  Spinning-wheels  and  cards,  one  loom  and  appliances  for  manufacturing  cloth  in 
and  for  the  private  family.  4.  Spun  yarn,  cloth,  and  thread  manufactured  for  family 
use.  5.  Hemp,  flax,  and  wool,  not  exceeding  twenty-five  pounds  each.  6.  Wear- 
ing apparel,  four  beds  and  bedding,  and  other  household  and  kitchen  furniture,  not 
exceeding  in  value  one  hundred  dollars.  7.  Necessary  tools  and  implements  of 
trade  of  a  mechanic.  8.  Arms  and  accoutrements  of  a  militia  man.  g.  Provisions 
for  the  family,  not  exceeding  one  hundred  dollars  in  value.  10.  Bibles  and  other 
books,  lettered  grave-stones,  and  pew  in  church.  11.  Lawyers,  physicians,  and 
clergymen  may  select  necessary  books  in  place  of  other  property  exempt,  and  doctors 
may  select  medicines.  The  head  of  a  family  may  select,  in  lieu  of  the  property 
mentioned  in  the  above  first  two  subdivisions,  other  property,  real  or  personal,  not 
exceeding  in  value  three  hundred  dollars. 

Every  housekeeper  or  head  of  a  family  is  also  entitled  to  hold  exempt  from 
execution  the  homestead  occupied  by  him,  not  exceeding  in  extent  eighteen  square 
rods,  or  in  value  three  thousand  dollars,  in  cities  of  over  forty  thousand  inhabitants  ; 
and  not  exceeding  in  extent  thirty  square  rods,  or  in  value  fifteen  hundred  dollars,  in 
cities  having  less  than  forty  thousand  and  more  than  ten  thousand  inhabitants  ;  and 
five  acres  in  extent,  and  fifteen  hundred  dollars  in  value,  in  cities  having  less  than 
ten  thousand  inhabitants  ;  and  not  exceeding  one  hundred  and  sixty  acres,  and 
fifteen  hundred  dollars  in  value,  in  the  country. 

To  a  person  not  the  head  of  a  family  there  is  exempt  his  wearing  apparel,  and  if 
a  mechanic,  the  necessary  tools  and  implements  of  his  trade. 

MONTANA. — Actions.  There  is  but  one  form  of  civil  action.  It  is  begu'^ 
by  filing  a  complaint  with  the  clerk. 

Akrest  may  be  had  on  filing  affidavit  and  bond  in  all  cases  of  fraud,  or  when 
the  action  is  for  willful  injury  to  person,  character,  or  property  ;  also  in  an  action  foi' 
fine  or  penalty,  or  for  money  or  property  embezzled  or  fraudulently  misapplied  by  a. 
public  officer,  officer  of  a  corporation,  attorney,  or  other  person  acting  in  a  fiduciary 
capacity  ;  or  where  the  defendant  has  removed  or  disposed  of  his  property,  or  is 
about  to  do  so,  with  intent  to  defraud  his  creditors. 

Attachment.  All  property  not  exempt  from  execution  may  be  attached  on 
filing  a  sufficient  bond,  and  an  affidavit  showing  that  defendant  is  indebted  to  plaintiff 
upon  a  contract  express  or  implied  for  the  payment  of  money,  gold  dust,  or  other 
property  unsecured  by  pledge  or  mortgage,  or  the  security  on  which  has  become 
insufficient. 

Attachments  may  be  made  before  the  demand  is  due,  if  the  defendant  is  leaving 
or  about  to  leave  the  Territory  with  all  his  property  which  might  be  subjected  to  the 
payment  of  the  debt,  for  the  purpose  of  defrauding  his  creditors  ;  or  is  disposing  of 
or  about  to  dispose  of  his  property  subject  to  execution,  for  the  same  purpose.  This 
must  be  shown  by  affidavit. 

Garnishment.  Personal  property  or  credits  in  the  possession  or  under  the 
control  of  another  may  be  attached  by  service  on  such  person  a  copy  of  the  writ,  and 
notice  that  the  property  or  credits  are  attached. 


ABSTRACT  OF   THE   COLLECTION  OF    DEBTS. 


731 


Judgments  are  liens  on  real  estate  of  the  debtor  then  owned  or  afterwards 
acquired,  in  the  county  where  the  judgment  is  entered,  for  six  years  from  the  time  of 
docketing  the  same.  A  similar  hen  may  be  acquired  on  lands  in  any  other  county  by 
tiling  a  certified  transcript  of  the  docket  with  the  recorder. 

Stay  Law.     There  is  no  statutory  enactment  on  the  subject. 

Exemptions.  All  clothing  of  the  debtor  and  family,  and  chairs,  tables,  desks, 
and  books  to  the  value  of  one  hundred  dollars  ;  also  all  necessary  household  furniture, 
and  provisions  and  fuel  for  two  months  ;  one  sewing-machine,  not  exceeding  one 
hundred  dollars,  in  actual  use  ;  also  one  horse,  two  cows  with  their  calves,  two 
swine,  and  fifty  domestic  fowl.  In  addition  to  the  above,  there  is  exempt  to  a 
farmer  his  farming  utensils  not  exceeding  six  hundred  dollars  in  value,  two  oxen,  or 
one  horse  or  mule  and  their  harness,  two  cows,  one  cart  or  wagon,  and  food  for  such 
stock  for  three  months,  two  hundred  dollars'  worth  of  seeds,  grain,  or  vegetables 
actually  provided  for  the  purpose  of  sowing  or  planting.  The  proper  tools,  instru- 
ments, or  books  of  any  mechanic,  physician,  dentist,  lawyer,  or  clergyman.  To  a 
miner,  his  dwelling,  not  exceeding  in  value  five  hundred  dollars,  and  all  his  tools  and 
machinery  necessary  for  carrying  on  his  avocation,  not  to  exceed  in  value  five 
hundred  dollars,  and  ~  one  horse  or  mule  or  two  oxen  and  their  harness,  with  their 
food  for  three  months,  in  case  such  stock  is  used  with  any  species  of  hoisting  gear 
upon  the  mine.  One  horse  or  mule,  or  two  oxen,  vehicle,  and  harness,  by  which  the 
debtor  habitually  earns  his  living,  and  one  horse,  with  vehicle  and  harness,  of  physi- 
cian or  clergyman  used  in  making  professional  visits,  with  •  food  for  such  stock  for 
three  months.  All  arms,  uniform,  etc.,  required  by  law  to  be  kept  by  any  person. 
The  wages  of  the  debtor  earned  within  the  thirty  days  preceding  the  levy,  if  necessary 
for  the  use  of  his  family  residing  in  the  Territory  and  supported  wholly  or  partly  by 
his  labor.  A  homestead,  not  to  exceed  in  value  twenty-five  hundred  dollars  ;  if 
agricultural  land,  not  to  exceed  one  hundred  and  sixty  acres  ;  if  within  a  town,  city, 
or  village,  not  to  exceed  one-fourth  of  an  acre. 

NEBRASKA. — There  is  but  one  form  for  all  civil  actions,  which  must  be 
prosecuted  by  the  real  party  in  interest,  and  which  are  begun  by  filing  a  petition  with 
the  clerk  of  the  court,  and  causing  a  summons  to  issue  thereon. 

Arrest  —  abolished  in  civil  actions. 

Attachment  may  issue  in  actions  for  the  recovery  of  money  on  filing  with  thi> 
clerk  an  affidavit  stating  the  nature  and  amount  of  the  claim,  that  it  is  just,  and  one 
of  the  following  grounds  :  i.  That  defendant  is  a  foreign  corporation,  or  non-resi- 
dent. 2.  That  he  has  absconded  with  intent  to  defraud  creditors.  3.  That  he  has 
left  the  county  of  his  residence  to  avoid  service  of  the  summons.  4.  That  he  so 
conceals  himself  that  service  cannot  be  made  on  him.  5.  That  he  is  about  to 
remove  his  property  beyond  the  jurisdiction  of  the  court  with  intent  to  defraud. 
6.  That  he  is  about  to  convert  his  property  into  money  to  place  it  beyond  the  reach 
of  creditors.  7.  That  he  has  property  concealed.  8.  That  he  has  removed  or 
disposed  of  his  property,  or  is  about  to  do  so,  with  intent  to  defraud,  g.  That  he 
fraudulently  contracted  the  debt. 

A  bond  is  also  required,  unless  the  defendant  is  a  non-resident. 

Garnishment.  In  cases  of  attachment,  if  the  plaintiff  makes  an  affidavit,  that 
he  believes  that  any  person  or  corporation  named,  and  within  the  county,  has 
property  of  the  defendant  (describing  it),  the  said  property,  whether  debts,  choses 
in  action,  or  other  property,  may  be  garnisheed,  and  the  garnishee  summoned  to 


732 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 


appear  at  court  and  answer  in   relation    thereto.     Also  on  return   of  an  execution, 
unsatislied,  the  judgment  creditor  may  have  a  writ  of  garnishment. 

JuDG.viEN  r  in  the  district  court  is  lien  on  lands  within  the  county  where  it  was 
rendered,  from  the  first  day  of  the  term  at  which  judgment  is  rendered  (except 
judgments  by  confession  and  those  rendered  at  same  term  that  action  was 
commenced,  which  are  liens  from  the  date  of  rendition),  and  in  other  counties 
from  the  filing  a  transcript  with  the  clerk  of  the  court,  and  the  lien  continues  for 
five  years.  Judgments  of  justices'  and  county  courts  are  liens  from  the  date  of 
docketing  a  transcript  thereof  in  the  office  of  the  clerk  of  the  district  court.  Interest 
on  ail  decrees  or  judgments  for  the  payment  of  money,  shall  be  from  the  rendition 
thereof,  at  the  rate  of  seven  per  cent,  till  paid,  unless  the  contract  on  which  the 
judgment  was  entered  specified  a  different  rate,  then  at  such  rate. 

St.a.y  Laws.  In  district  courts  judgments  for  fifty  dollars  and  under  three 
months,  between  fifty  and  one  hundred  dollars  six  months,  over  one  hundred  dollars 
nine  months. 

In  justice's  courts  judgments  for  ten  dollars  and  under,  sixty  days,  between  ten 
'md  fifty  dollars  ninety  days,  between  fifty  and  one  hundred  dollars  six  months, 
'between  one  hundred  and  two  hundred  dollars  nine  months. 

In  county  courts  judgments  for  sums  under  two  hundred  dollars  on  the  same 
lerms  as  in  justice's  courts,  over  two  hundred  dollars  same  as  in  district  courts. 

Bond  wiih  sureties  is  required. 

No  stay  is  allowed  on  judgments  rendered  on  appeal  or  for  money  received  in  an 
official  or  fiduciary  capacity. 

Exemptions.  To  heads  of  families  having  no  homestead  there  is  exempt  five 
hundred  dollars'  worth  of  personal  property.  Homestead  not  exceeding  two  thousand 
dollars  in  value,  consisting  of  dwelling-house  and  one  hundred  and  sixty  acres  not 
in  an  incorporated  city  or  village,  or  two  contiguous  lots  on  a  recorded  plot  in  a  city, 
town,  or  village.  If  debtor  has  no  lands  personal  property  to  the  value  of  five 
hundred  dollars  is  exempt.  Of  personal  property  :  i.  Family  Bible.  2.  Family 
pictures,  school-books,  and  library  for  use  in  the  family.  3.  Seats  or  pew  in  church. 
4.  Lot  in  burying-ground.  5.  Necessary  wearing  apparel,  beds,  bedding,  and 
bedsteads  necessary  for  the  family,  all  stoves  and  apparatus,  not  exceeding  four, 
cooking  utensils  and  other  household  furniture  not  enumerated,  not  exceeding  one 
hundred  dollars  in  value.  6.  One  cow,  three  hogs,  and  all  pigs  under  six  months, 
and  if  the  debtor  be  actually  engaged  in  agriculture,  one  yoke  of  oxen,  or  in  lieu 
thereof  one  pair  of  horses,  ten  sheep,  and  the  wool  therefrom,  manufactured  or  not, 
necessary  food  for  stock  for  three  months,  one  wagon,  cart,  or  dray,  two  plows,  and 
one  drag,  necessary  gear,  and  farming  implements,  not  exceeding  fifty  dollars  in 
value.  7.  Provisions  and  fuel  for  six  months.  S.  Tools,  instruments  of  a  mechanic 
or  miner,  or  other  person  used  for  carrying  on  his  trade  or  business,  library  and 
implements  of  a  professional  man,  head  of  a  family,  and  wages  of  laborers, 
mechanics,  and  clerks,  heads  of  families  for  sixty  days. 

NEVADA. — Actions.  There  is  only  one  form  of  action,  which  is  prosecuted 
by  the  real  party  in  interest,  and  is  begun  by  filing  a  complaint  with  the  clerk,  and 
issuing  a  summons  thereon.  The  defendant  may  appear  voluntarily,  when  he 
waives  notice  of  the  summons. 

Arrest.  Defendant  may  be  arrested  and  held  to  bail,  i.  In  an  action  for  the 
recovery  of  money  or  damages  in  an  action  on  contract,   where  he  is  about  to  leave 


ABSTRACT  OF  THE   COLLECTION  OF  DEBTS.       -33 

the  State  with  intent  to  defraud  his  creditors,  or  where  the  action  is  for  libel  or 
slander.  2.  In  an  action  for  a  fine  or  penalty,  or  for  embezzlement,  or  fraudulent 
misappropriation  of  money  by  a  public  officer  of  a  corporation,  or  an  attorney, 
agent,  broker,  etc.,  or  any  other  person  in  a  fiduciary  capacity,  or  misconduct  in 
office  or  professional  emplojTnent.  3.  In  an  action  to  recover  property  unjustly 
detained,  where  the  property  has  been  removed  or  concealed.  4.  Where  the 
defendant  fraudulently  contracted  the  debt.  5.  Where  the  defendant  has  or  is 
about  to  dispose  of  his  property  fraudulently.  PlaintifT  must  make  affidavit  of  one 
of  the  above  grounds,  and  give  security  for  damages  and  costs. 

Att.\chment  may  be  had  at  any  time — i.  In  an  action  of  contract  for  the  direct 
payment  of  money  made  or  paj'able  in  Nevada,  and  not  secured,  or  the  security 
for  which  has  become 'worthless  by  act  of  defendant.  2.  In  an  action  of  contract 
against  a  non-resident.  3.  In  an  action  by  resident  for  recovery  of  value  of  property 
converted  by  defendant.  4.  Where  defendant  has  absconded  or  is  about  to  do  so 
to  defraud  creditors.  5.  Where  he  conceals  himself  to  avoid  service  of  summons. 
6.  When  he  is  about  to  remove  property  beyond  jurisdiction  of  court  with  intent  to 
defraud.  7.  When  he  is  about  to  convert  property  into  money  to  place  it  beyond 
reach  of  creditors.  8.  When  he  has  removed  or  disposed  of  property  to  defraud 
creditors.  g.  When  he  fraudulently  or  criminally  contracted  the  debt.  Plaintiff 
must  file  an  affidavit  with  the  clerk  of  the  court,  stating  nature  and  amount  of  his 
claim  and  one  of  the  grounds  mentioned,  and  give  security  to  defendant. 

Garnishment.  Debts  and  credits  of  the  defendant  in  the  hands  of  third 
parties  may  be  attached  on  original  process. 

Judgment  is  a  lien  in  the  county  where  it  was  rendered  from  the  time  of 
docketing,  and  in  other  counties  from  date  of  filing  a  transcript,  the  lien  continues 
for  two  years.  The  legal  rate  of  interest  on  judgments  is  seven  per  cent,  but 
parties  may  stipulate  for  any  rate  by  contract,  which  is  followed  in  the  judgment. 

There  is  no  stay  of  execution  except  on  appeal. 

Exemptions,  i.  Chairs,  tables,  desks,  and  books  to  the  value  of  one  hundred 
dollars.  2.  Necessary  household,  furniture,  wearing  apparel,  provisions  and  fire- 
wood for  one  month.  3.  Farm  utensils,  also  two  oxen,  or  horses,  or  mules  an(\ 
their  harnesses,  two  cows,  one  cart  or  wagon,  and  food  for  stock  for  one  month 
seed  grain,  or  vegetables  for  planting  or  sowing  within  six  months,  to  the  value  ci* 
two  hundred  dollars.  4.  Tools  and  implements  of  mechanic  or  artisan  necessary  tci 
his  trade,  and  instruments  and  chests  of  a  surgeon,  physician,  surveyor,  or  dentist, 
necessary  for  their  profession,  with  their  scientific  or  professional  libraries,  and 
library  of  an  attorney  or  clergyman.  5.  Cabin  of  a  miner  not  exceeding  five 
hundred  dollars  in  value,  also  all  mining  apparatus  and  tools  to  the  value  of  five 
hundred  dollars,  and  two  horses,  mules,  or  oxen,  and  their  harness,  and  food  for 
stock  for  one  month.  6.  Two  oxen,  horses,  or  mules,  and  their  harness,  and  cart 
by  which  a  carter  or  teamster,  etc.,  earns  his  living,  one  horse,  vehicle,  and  harness 
necessary  for  a  physician  or  clergyman,  and  food  for  one  month.  7.  Sewing- 
machine  to  the  value  of  one  hundred  and  fifty  dollars  and  in  actual  use.  8.  Arms 
and  accoutrements  of  a  militia  man.  9.  A  homestead  not  exceeding  in  value  five 
thousand  dollars. 

NEW  HAMPSHIRE.— Actions  are  begun  by  writ  of  summons,  attachment, 
or  capias,  trustee  process,  or  replevin,  in  forms  which  are  prescribed  by  statute. 
Attachment.     All  property  not  exempt  from  being  taken  on  execution  may  be 


734       ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 

attached,  of  right,  without  an  affidavit,  and  the  lien  continues  for  thirty  days  after 
judgment. 

Arrest. — The  defendant  may  be  arrested  on  an  action  of  contract  if  the  debt 
or  damage,  exclusive  of  all  costs,  amounts  to  thirteen  dollars  and  thirty-three  cents, 
on  an  affidavit  made  before  a  justice  of  the  peace  that  the  affiant  believes  that  the 
defendant  is  justly  indebted  to  the  plaintiff,  and  that  he  conceals  his  property  so  that 
no  attachment  can  be  made,  or  that  he  has  good  reason  to  believe  that  he  is  going 
to  leave  the  State  to  avoid  payment  of  his  debts.  No  woman,  sheriff,  or  voter  on 
election  day  is  liable  to  arrest. 

Garnishment,  called  Trustee  Process.  All  actions  except  replevin,  trespass 
to  the  person  and  defamation  and  malicious  prosecution,  may  be  begun  by  trustee 
process.  It  is  in  the  form  of  an  attachment  and  summons;  and  the  names  of  other 
parties  may  be  inserted  in  the  writ  as  trustees,  at  any  time  before  service  on  the 
defendant. 

Judgment  is  not  a  lien.     \_See  Attachment.]    There  is  no  stay  of  execution. 

Exemptions.  Necessary  wearing  apparel,  beds,  bedding,  and  bedsteads  for 
the  debtor  and  his  family,  household  furniture  to  the  value  of  one  hundred  dollars. 
]?ibles,  school-books,  and  library  to  the  value  of  two  hundred  dollars.  One  cow, 
()ne  hog,  one  pig,  and  the  pork  of  the  same  when  slaughtered.  Tools  of  his 
occupation  not  exceeding  one  hundred  dollars  in  value.  Six  sheep  and  their 
fleeces.  Cooking-stove  and  necessary  furniture  for  the  same.  Provisions  and  fuel 
to  the  value  of  fifty  dollars.  Uniform  and  accoutrements  of  a  militia  man.  Pew  in 
a  church.  A  lot  in  a  burying-ground.  One  sewing-machine.  Beasts  of  the  plow 
not  exceeding  one  yoke  of  oxen  or  a  horse,  and  hay  not  exceeding  four  tons. 
Domestic  fowls  not  exceeding  in  value  fifty  dollars.  Also  a  homestead  of  the  head 
of  a  family  not  exceeding  in  value  five  hundred  dollars. 

NEW  JERSEY. — Actions  under  the  provisions  of  the  common  law,  as 
modified  by  statute,  are  begun  by  writs  of  summons,  capias,  or  warrant  attach- 
ment, etc. 

Arrest.  A  writ  of  capias  issues  on  an  affidavit,  specifying  the  nature  and 
particulars  of  the  debt,  and  one  or  more  of  the  following  causes  :  i.  That  the 
defendant  is  about  to  remove  any  property  out  of  the  jurisdiction  of  the  court  with 
intent  to  defraud  creditors.  2.  That  the  defendant  has  property  or  rights  which  he 
fraudulently  conceals.  3.  That  he  has,  or  is  about  to  assign,  remove,  or  dispose  of 
his  property  with  intent  to  defraud  his  creditors.  4.  Or  that  the  debt  was  fraudu- 
lently contracted.  No  woman  can  be  arrested  on  civil  process,  nor  can  a  voter  be 
arrested  on  election  day. 

Attachment.  A  writ  may  issue  on  affidavit  on  behalf  of  the  creditor  that  the 
defendant  has  absconded,  and  is  not,  to  his  belief,  a  resident  of  the  State,  or  against 
a  defendant  living  out  of  the  State. 

Garnishment  is  allowed. 

Judgment  is  a  lien  on  real  estate  from  the  time  of  entry  of  judgment  and  remains 
a  lien  for  the  period  of  limitation,  twenty  years,  and  bears  interest  at  six  per  cent. 

Stay  Laws.  Stay  of  execution  is  allowed  only  in  justices'  courts,  where 
defendant  appears  on  the  day  judgment  is  given  and  gives  a  bond  with  surety,  — on 
sums  not  exceeding  fifteen  dollars,  one  month  ;  between  fifteen  and  sixty  dollars, 
three  months  ;  and  over  sixty  dollars,  six  months. 

Exemptions.      Goods   and   chattels,   shares  of  stock  in   any  corporation   and 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS.       735 

personal  property  of  ever)'  kind  to  the  value  of  two  hundred  dollars  (exclusive  of 
wearing  apparel),  and  wearing  apparel  of  the  debtor  having  a  family.  Also  the  lot 
and  building  owned  and  occupied  by  the  debtor,  if  he  is  head  of  a  family,  to  the 
value  of  one  thousand  dollars,  provided  the  necessary  steps  required  by  statute  to 
secure  the  same  have  been  taken. 

NEW  MEXICO. — Actions  at  law  are  commenced  by  filing  a  declaration  and 
service  of  summons  ;  the  subsequent  proceedings  are  substantially  the  same  as  at 
common  law. 

Arrest.  Defendant  may  be  arrested  on  writ  of  capias  when  about  to  abscond 
from  the  Territory  so  as  to  endanger  the  collection  of  a  debt  of  more  than  fifty  dollars 
due  against  him,  and  may  be  discharged  on  giving  security  to  abide  the  judgment. 
Defendant  may  also  be  arrested  when  the  sheriff  on  execution  can  find  no  property 
belonging  to  him,  and  may  be  discharged  at  the  expiration  of  five  days,  on  delivering 
to  the  sheriff  a  schedule  of  his  property,  made  under  oath. 

Attachment  may  issue  in  the  following  cases  :  i.  When  the  debtor  is  a 
non-resident.  2.  Or  has  concealed  himself,  or  absconded,  or  absented  himself  from 
his  usual  place  of  abode  in  the  Territory,  so  that  ordinary  process  of  law  cannot  be 
served  upon  him.  3.  Or  is  about  to  remove  his  property  from  the  Territorj-,  or  has 
fraudulently  concealed  or  disposed  of  the  same,  so  as  to  hinder,  delay,  or  defraud  his 
creditors.  4.  Or  is  about  to  fraudulently  convey  or  assign,  conceal  or  dispose  of  his 
property,  to  hinder,  delay,  or  defraud  his  creditors.  5.  When  the  debt  was 
contracted  out  of  the  Territory,  and  the  debtor  has  absconded  or  secretly  removed 
his  property  or  effects  into  the  Territory  with  like  intent.  6.  When  the  defendant 
is  a  corporation  whose  principal  office  or  place  of  business  is  out  of  the  Territory, 
unless  it  has  a  designated  agent  within  the  Territory,  on  whom  service  of  process 
may  be  made.  7.  When  defendant  has  fraudulently  contracted  the  debt,  incurred 
the  obligation,  or  obtained  credit  from  the  plaintiff  by  false  pretenses.  Attachment 
may  issue  on  a  claim  not  yet  matured. 

Plaintiff  must  file  an  affidavit  setting  forth  that  defendant  is  justly  indebted  to 
him  after  allowing  all  just  off-sets,  and  one  of  the  above  causes  of  attachment,  and 
give  security  for  costs  and  damages. 

G.\RNISHMENT.  Any  person  having  property  or  credits  of  the  defendant  in  his 
possession  may  be  garnished  on  affidavit  that  he  is  indebted  to  the  defendant  and 
has  monej'  credits  or  property  belonging  to  him  in  his  possession. 

JuDG.MENTS  of  the  district  courts  for  the  counties  of  Santa  Fe,  Bernalillo,  and 
Dona  Ana,  are  liens  on  real  estate  in  the  county  where  the  judgment  is  entered,  from 
the  date  of  rendition.  Judgments  rendered  in  other  counties  become  liens  upon 
filing  a  certified  copy  of  the  docket  of  the  judgment  in  the  office  of  the  clerk  of  the 
probate  court  of  the  county  in  which  the  real  estate  is  situated. 

ST.A.Y  Law.     There  is  no  stay  of  execution  except  in  case  of  appeal. 

Exemptions.  Real  estate  to  the  value  of  one  thousand  dollars,  in  favor  of  heads 
of  families  actually  residing  on  the  same  ;  also  the  clothing,  beds,  and  bedding 
necessary  for  the  use  of  the  family,  and  firewood  for  thirty  days,  one  cow,  two  swine, 
and  four  sheep  ;  all  Bibles,  hymn-books,  Testaments,  school-books  used  by  the 
family,  and  family  and  religious  pictures  ;  provisions  to  the  amount  of  fifty  dollars, 
and  household  and  kitchen  furniture  to  the  value  of  two  hundred  dollars,  to  be 
selected  by  the  debtor.  Also  all  tools  and  implements  belonging  to  the  debtor 
necessary  to  enable  him  to  carry  on  his  trade  or  business,  whether  agricultural  or 


736       ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 

mechanical,  to  be  selected  by  him,  and  not  to  exceed  one  hundred  and  fifty  dollars  in 
value  ;  one  sewing-machine,  one  knitting-machine,  and  one  gun  or  pistol  ;  personal 
earnings  of  debtor,  and  minor  children  if  necessary  for  his  support ;  specimens  and 
cabinets  of  natural  history  or  science  not  exhibited  for  gain  ;  every  drayman  or  other 
carrier  shall  hold  in  addition  one  horse,  harness,  dray  or  wagon,  and  every  head  of 
family  engaged  in  agriculture  two  horses,  or  one  yoke  of  oxen,  with  gearing,  and  one 
wagon  ;  every  physician,  head  of  a  family,  one  horse,  saddle  and  bridle,  and  books, 
medicines,  and  instruments,  not  exceeding  one  hundred  dollars  in  value  ;  every 
unmarried  woman,  wearing  apparel  not  exceeding  one  hundred  and  fifty  dollars  in 
value,  one  sewing-machine  and  one  knitting-machine,  and,  if  engaged  in  teaching 
music,  one  piano  or  organ,  a  Bible,  hymn-book,  psalm-book,  album,  and  other  books, 
not  exceeding  fifty  dollars  in  value  ;  every  lawyer,  head  of  a  family,  professional 
library,  not  exceeding  five  hundred  dollars. 

A  head  of  a  family,  not  the  owner  of  a  homestead,  may  hold  real  or  personal 
property,  in  addition  to  the  above,  to  the  amount  of  five  hundred  dollars. 

NEW  YORK. — There  is  but  one  form  of  action,  which  is  regulated  by  the 
code  of  civil  procedure.  It  is  begun  by  the  service  of  a  summons,  specifying  th<e 
names  of  all  parties,  on  the  defendant  personally,  if  within  the  State. 

Arrest.  The  defendant  may  be  arrested  on  mesne  process,  i.  To  recover  a  fine 
or  penalty.  2.  Or  damages  for  a  personal  injury  or  an  injury  to  property,  including 
the  taking,  detaining,  or  conversion  of  the  same,  breach  of  promise  to  marry,  mil- 
conduct  or  negligence  in  an  official  or  professional  employment,  fraud,  and  deceit. 
3.  To  recover  property  owned  or  held  by  the  State  or  some  department  thereof, 
which  defendant  has  wrongfully  obtained,  or  to  recover  damages  therefor.  4.  To 
recover  a  chattel,  concealed  or  disposed  of  in  order  to  prevent  the  plaintiff  from 
obtaining  the  same.  5.  To  recover  on  a  contract  other  than  a  promise  of  marriage, 
when  the  defendant  has  been  guilty  of  fraud  in  contracting  the  debt,  or  has,  or  is 
about  to  dispose  of  his  property  with  intent  to  defraud  his  creditors.  6.  To  recover 
for  money  or  property  embezzled  or  fraudulently  misapplied  by  a  public  officer  or 
other  person  acting  in  a  fiduciary  capacity.  7.  An  order  of  arrest  may  also  be 
granted  against  a  non-resident  or  a  resident  about  to  depart  from  the  State  in  an 
action  wherein  the  judgment  demanded  requires  the  performance  of  some  act  tho 
failure  to  perform  which  would  be  a  contempt  of  court.  A  woman  can  be  arrested 
only  in  the  case  last  mentioned,  or  in  an  action  for  willful  injury  to  person,  character, 
or  property. 

Attachment  may  issue  where  the  complaint  demands  judgment  for  a  sum  of 
money  only,  as  damages  for  one  of  the  following  causes  :  i.  For  breach  of  contract 
other  than  a  promise  to  marry.  2.  For  wrongful  conversion  of  personal  property. 
3.  For  any  other  injury  to  personal  property  in  consequence  of  fraud,  negligence,  or 
other  misconduct ;  on  an  affidavit  showing  sufficient  cause  as  above,  and  that  defend- 
ant is  a  foreign  corporation  or  non-resident,  or  that  he  has  departed  from  the  State 
with  intent  to  defraud  creditors,  or  to  avoid  service,  or  keeps  himself  concealed  with 
like  intent,  or  has  or  is  about  to  remove  his  property  from  the  State  with  intent  to 
defraud  creditors,  or  has  or  is  about  to  assign  or  dispose  of  his  property  with  like 
intent.     Plaintiff  must  give  security  for  costs  and  damages. 

Judgment  for  an  amount  exceeding  twenty-five  dollars  is  a  lien  on  the  real 
estate  of  defendant  from  the  time  of  docketing  in  the  county  where  the  land  is  situate, 
and  remains  a  lien  for  ten  years.  There  is  no  stay  of  execution  except  in  cases  of 
appeal. 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS.      737 

ExcMPTiONS.  Of  a  householder :  i.  Spinning-wheels,  weaving-looms,  and 
stoves  put  up  and  for  use  in  the  dwelling-house,  and  one  sewing-machine  and  appur- 
tenances. 2.  P'amily  Bible,  family  pictures,  school-books,  and  other  books  not 
exceeding  fifty  dollars  in  value.  3.  Seat  or  pew  in  church.  4.  Ten  sheep  and 
their  fleeces,  and  yarn  or  cloth  manufactured  therefrom,  one  cow,  two  swine,  neces- 
sary food  for  animals  and  for  the  household,  and  fuel,  oil,  and  candles  for  si.\tydays. 
5.  Wearing  apparel,  beds,  bedding  and  bedsteads  necessary  for  the  family,  necessary 
cooking  utensils,  one  table,  six  chairs,  six  knives  and  forks  and  spoons,  six  plates, 
six  teacups  and  saucers,  one  sugar  dish,  milkpot,  teapot,  crane  and  appendages,  pair 
of  andirons,  coal-scuttle,  shovel,  pair  of  tongs,  lamp,  and  candlestick.  6.  Tools 
and  implements  of  a  mechanic  and  necessary  for  carrying  on  his  trade  not  exceeding 
twenty-five  dollars  in  value.  In  addition,  when  debtor  is  a  householder,  or  has  a 
family  for  whom  he  provides,  necessary  household  furniture;  working  tools  and 
team,  professional  instruments,  furniture  and  library,  not  exceeding  two  hundred  and 
fifty  dollars  in  value,  together  with  necessary  food  -for  the  team  for  ninety  days,  and 
groceries  provided  for  family  use,  are  exempt  except  in  actions  for  wages  by  domestic 
servants  or  for  purchase  money  of  some  article  exempt.  A  burying-ground  actually 
occupied  and  not  exceeding  a  quarter  of  an  acre.  Homestead  of  a  householder 
having  a  family,  owned  and  occupied  by  kirn,  to  the  value  of  one  thousand  dollars, 
provided  it  is  recorded  as  homestead  property  in  the  office  of  the  clerk  of  the  county 
where  it  is  situated,  but  it  is  not  exempt  in  suits  for  taxes,  purchase  money,  or  debts 
contracted  before  record. 

NORTH  CAROLINA. — Actions.  The  distinctions  between  law  and  equity 
and  the  forms  of  actions  are  abolished,  and  there  is  but  one  form  of  action,  which  is 
begun  by  issuing  a  summons  from  the  clerk  of  the  court,  and  which  is  prosecuted  in 
the  name  of  the  real  party  in  interest,  except  in  case  of  executors,  etc. 

Arrest.  Defendant  may  be  arrested  and  held  to  bail  in  an  action  for  damages 
not  on  contract,  where  the  defendant  is  a  non-resident  or  is  about  to  remove  from  the 
State,  or  for  injury  to  person  or  character,  or  for  the  wrong-taking,  detaining,  or 
converting  of  property.  2.  In  an  action  for  a  fine  or  penalty,  or  for  seduction,  or  for 
money  received  or  property  embezzled,  or  fraudulently  misappropriated  by  a  public 
officer,  attorney,  solicitor,  officer  of  a  corporation,  factor,  agent,  or  broker,  or  fot 
misconduct  or  negligence  in  office  or  professional  employment.  3.  In  an  action  t » 
recover  personal  property  unjustly  detained  and  concealed  so  that  the  sheriff  cannot 
find  it.  4.  Where  the  debt  was  fraudulently  contracted,  or  where  defendant  fraudu- 
lently conceals  or  disposes  of  the  property  for  which  action  is  brought,  or  when  the 
action  is  for  damages  for  fraud  or  deceit.  5.  Where  defendant  has  removed  or  dis- 
posed of  his  property,  or  is  about  to  do  so,  with  intent  to  defraud  creditors.  Plaintiff 
must  make  affidavit  of  the  cause  of  action,  and  showing  one  of  the  above  grounds, 
and  give  security  to  defendant.  No  woman  can  be  arrested  except  for  willful  injury 
to  person,  character,  or  property. 

Attachment  is  allowed  at  the  time  of  issuing  summons,  or  at  any  time  there- 
after, in  an  action  for  the  recovery  of  money  only,  or  for  damages  for  breach  of  con- 
tract for  the  wrongful  conversion  of  personal  property,  or  any  injury  to  personal  prop- 
erty through  negligence,  fraud,  or  other  wrongful  act,  against  a  foreign  corporation 
or  a  non-resident,  or  against  a  defendant  absconding  or  concealing  himself,  or  who 
is  about  to  remove  his  property  from  the  State,  or  who  has  assigned,  secreted, or  dis- 
posed of  his  property,  or  is  about  to  do  so,  with  intent  to  defraud  creditors,  on  an 
47 


738       ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 

affidavit  specifying  tlie  cause  of  action,  the  amount,  grounds,  and  one  of  the  above 
reasons,  and  giving  security  for  damages  and  costs. 

Garnishment.  There  is  no  distinctive  process  of  garnishment;  it  is  only  allow- 
able by  original  attachment. 

Judgment  is  a  lien  on  real  estate  in  every  county  from  the  time  of  docketing  or 
filing  a  transcript  thereof,  and  remains  a  lien  for  ten  years  ;  bears  interest  at  six  per 
cent.,  or  at  a  rate  not  exceeding  eight  per  cent.,  if  specified  in  the  agreement  sued 
upon. 

Stay  Laws.  Stay  of  execution  is  allowed  on  judgments  in  justices'  courts  as 
follows  :  On  sums  not  exceeding  twenty-five  dollars,  one  month;  between  twenty-five 
and  fifty  dollars,  three  months  ;  between  fifty  and  one  hundred  dollars,  four  months  ; 
over  one  hundred  dollars,  six  months.      Defendant  must  give  bond  with  surety. 

Exemptions.  Homestead  occupied  by  the  debtor  to  the  value  of  one  thousand 
dollars  ;  also  personal  property,  to  be  selected  by  the  debtor,  to  the  value  of  five  hun- 
dred dollars. 

NORTH  DAKOTA. — Actions  are  commenced  by  service  of  summons  and 
must  be  prosecuted  by  the  real  party  in  interest. 

Arrest.  An  order  of  arrest  may  be  obtained  in  the  following  cases  on  plaintiff's 
filing  an  affidavit  setting  forth  thefacts  on  which  it  is  asked,  and  furnishing  security, 
■viz.:  in  an  action  for  damages  not  founded  on  contract,  where  defendant  is  a 
non-resident,  or  is  about  to  remove  from  the  State,  or  where  action  is  for  injury  to 
person  or  character  or  .for  injury  to  or  wrongfully  taking,  detaining,  or  converting 
property;  in  an  action  for  a  fine  or  penalty,  or  on  a  promise  to  marry,  or  for  money 
leceived  or  property  embezzled,  or  fraudulently  misapplied  by  a  public  officer,  at- 
torney, or  other  person  in  a  fiduciary  capacity,  or  fpr  any  misconduct  or  neglect  in 
office  or  in  a  professional  employment  in  an  action  for  recovery  of  personal  property 
disposed  of  or  concealed  to  prevent  its  being  taken  by  the  sheriff,  or  where  debt  was 
fraudulently  contracted,  or  where  debtor  has  removed  his  property  or  is  about  to  do  so 
to  defraud  creditors. 

Imprisonment  for  debt  is  abolished. 

Attachment  may  issue  in  action  on  contract  for  recovery  of  money  only,  or  in 
action  for  wrongful  conversion  of  personal  property,  against  a  foreign  corporation  or 
non-resident,  or  a  defendant  who  has  absconded  or  conceals  himself,  or  is  about  to 
remove  his  property  from  the  State,  or  has  disposed  of  his  property  or  is  about  to  do 
so  with  intent  to  defraud  creditors,  or  is  about  to  remove  from  the  county,  to  per- 
manently change  residence  without  giving  security  for  debt  after  demand. 

Plaintiff  must  file  affidavit  stating  ground  of  claim  and  amount  and  one  of  causes 
above  stated,  and  giving  security. 

Attachment  may  issue  in  certain  cases  before  maturity  of  claim. 

Garnishment  not  authorized. 

Judgment  is  a  lien  on  defendant's  real  estate  in  every  county  where  it  is  docketed, 
for  ten  years  from  time  of  docketing  in  the  county  where  rendered. 

Exemption.  A  homestead  not  exceeding  in  value  five  thousand  dollars,  provided 
claimant  be  the  head  of  a  family.  All  family  pictures,  pew,  burial  lot,  family 
Bible  and  school  books,  family  library  not  exceeding  in  value  one  hundred  dollars, 
wearing  apparel  of  debtor  and  family,  provisions  and  fuel  for  one  year,  and  other 
personal  property  to  be  selected  by  the  debtor  not  exceeding  in  value  fifteen  hundred 
dollars. 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS.       739 

Instead  of  the  fifteen-hundred-dollar  exemption  debtor  may  select  the  following: 
books  and  musical  instruments  for  family  use  not  exceeding  in  value  five  hundred 
dollars,  household  and  kitchen  furniture  used  by  debtor  and  family,  not  exceeding 
five  hundred  dollars,  three  cows,  ten  swine,  one  yoke  of  cattle  and  two  horses  or 
mules,  or  two  yoke  of  cattle  or  two  pair  of  horses  or  mules,  one  hundred  sheep  and 
their  lambs  under  six  months  old,  and  all  wool  of  same  and  cloth  or  yarn  made  there- 
from, food  for  animals  for  one  year,  one  wagon,  one  sleigh,  two  plows,  one  harrow, 
and  farming  tools  and  tackle  not  exceeding  three  hundred  dollars  ;  the  tools  and  im- 
plements of  a  mechanic  used  for  the  purpose  of  his  business,  and  stock  in  trade  not 
exceeding  t\vo  hundred  dollars  ;  library  and  instruments  of  a  professional  man  not  ex- 
ceeding in  value  six  hundred  dollars. 

OHIO. — Actions.  All  distinctions  are  abolished  ;  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest,  except  in  case  of  executors,  etc.,  and  are  begun  by 
filing  with  the  clerk  of  the  court  a  petition  and  a  precipe,  stating  the  names  of  the  par- 
ties and  demanding  a  summons  thereon. 

Arrest.  Defendant  may  be  arrested  on  affidavit  made  before  any  judge,  clerk  of 
the  court,  or  justice  of  the  peace,  stating  the  nature  and  amount  of  the  claim,  that  it 
is  just,  and  one  of  the  following  grounds  :  i.  That  the  defendant  has  removed  or  is 
about  to  remove,  his  property  out  of  the  jurisdiction  of  the  court  with  intent  to  defraud 
creditors.  2.  That  he  has  begun  to  convert  his  property  into  money  with  intent  to 
place  it  beyond  the  reach  of  his  creditors.  3.  That  he  has  property  or  rights  that  he 
fraudulently  conceals.  4.  That  he  has  assigned,  removed,  or  disposed  of  his  property, 
or  has  begun  to  do  so,  with  intent  to  defraud  creditors.  5.  That  the  debt  was  fraud- 
ulently contracted.  6.  That  the  money  or  thing  for  which  recovery  is  sought  was  lost 
by  gaming  or  by  a  wager.  The  affidavit  must  also  state  the  facts  claimed  to  justify 
belief  in  the  ground  alleged,  and  the  order  may  issue  at  any  time  before  judgment. 
Plaintiff  must  also  give  security  for  damages.  Defendant  may  also  be  arrested  on  any 
judgment  for  payment  of  money  on  grounds  substantially  the  same  as  above,  and  also 
when  he  was  arrested  before  judgment  and  has  not  been  discharged  as  an  insolvent 
debtor. 

Officers  and  soldiers  in  the  revolutionary  war,  and  all  females,  are  privileged 
from  arrest  on  all  process,  mesne  or  final,  for  any  debt  or  demand  founded  on  con- 
tract. 

Attachment  is  granted  in  civil  action  for  recovery  of  money  on  an  affidavit 
stating  the  nature,  amount,  and  justice  of  the  cause,  and  one  of  the  following  causes  : 
I.  That  the  defendant  is  a  foreign  corporation  or  a  non-resident.  2.  Or  has  ab- 
sconded with  intent  to  defraud  creditors.  3.  Has  left  the  county  of  his  residence  to 
avoid  service  of  the  summons.  4.  So  conceals  himself  that  service  cannot  be  had  on 
him.  5.  Is  about  to  remove  his  property  beyond  the  jurisdiction  of  the  court,  to  de- 
fraud his  creditors.  6.  Is  abouc  to  convert  his  propertj'  into  money  to  place  it  beyond 
the  reach  of  his  creditors.  7.  That  he  has  property  or  rights  of  action  which  he  con- 
ceals. 8.  Has  assigned  or  removed,  or  is  about  to  assign  or  remove  his  property  with 
intent  to  defraud  creditors,  g  That  the  df^bt  was  fraudulently  or  criminally  contract- 
ed. But  attachment  is  not  to  issue  on  the  ground  that  the  defendant  is  a  foreign 
corporation  or  non-resident,  for  any  claim  other  than  a  debt  or  demand  arising  on  a 
contract,  judgment,  or  decree,  or  for  causing  death  by  a  negligent  or  wTongful  act.  Se- 
curity must  be  given  unless  defendant  is  a  foreign  corporation  or  non-resident.  At- 
tachment may  be  granted  in  certain  cases  before  debt  is  due. 


740 


ABSTRACT  OF  THE   COLLECTION  OF  DEBTS. 


Garnishment.  If  the  plaintiff,  or  some  one  on  his  behalf,  shall  make  oath  in 
writing  that  any  person  or  corporation  named  has  any  property  of  the  defendant  (de- 
scribing it),  such  person  or  corporation  may  be  summoned  as  garnishee. 

Judgment  is  a  lien  on  real  estate  within  the  county  where  rendered,  from  the  first 
day  of  the  term,  except  judgments  by  confession,  and  those  rendered  at  term  when 
action  is  commenced,  which  bind  from  the  date  when  they  are  rendered  ;  in  other 
counties  from  date  of  filing  transcript.  Lien  continues  for  five  years,  but  execution 
must  issue  on  the  judgment  within  one  year,  or  the  lien  is  lost,  as  against  any  other 
judgment  creditor.  Judgment  bears  interest  at  the  same  rate  as  the  contract  on  which 
it  was  rendered. 

Stay  Laws.  Stay  of  execution  is  allowed  only  in  justices'courts  on  giving  bond  with 
surety  within  ten  days  after  judgment  was  given,  as  follows  :  On  sums  not  exceeding 
five  dollars,  sixty  days  ;  between  five  and  twenty  dollars,  ninety  days  ;  between  twenty 
and  fifty  dollars,  one  hundred  and  fifty  days  ;  of  fifty  dollars  and  over,  two  hundred 
and  forty  days. 

Exemptions.  The  homestead  of  the  head  of  a  family  to  the  value  of  one  thou- 
sand dollars,  or  if  he  does  not  own  any  homestead,  he  may  select  personal  or  real  prop- 
erty to  the  value  of  five  hundred  dollars  in  addition  to  the  amount  of  personal  prop- 
erty otherwise  exempt,  viz.:  i.  Wearing  apparel,  beds,  bedding  and  bedsteads  nec- 
essary for  the  family,  one  cooking-stove,  and  one  stove  used  for  warming,  and  fuel 
for  sixty  days.  2.  One  cow,  or,  if  the  debtor  has  no  cow,  household  furniture  to  the 
value  of  thirty-five  dollars,  two  swine  or  their  pork,  or,  in  lieu  thereof,  household 
property  to  the  value  of  fifteen  dollars,  six  sheep  and  the  wool  and  cloth  therefrom, 
or  household  furniture  to  the  value  of  fifteen  dollars,  and  food  for  such  animals,  if 
any,  for  sixty  days.  3.  Bible,  hymn-books,  psalm-books,  testaments,  and  school- 
books.and  family  pictures.  4.  Provisions  actually  provided  to  the  value  of  fifty  dollars, 
and  other  articles  of  household  and  kitchen  furniture  to  the  value  of  fifty  dollars.  5. 
One  sewing  machine,  one  knitting-machine,  tools  and  implements  for  trade  not  ex- 
ceeding one  hundred  dollars  in  value.  6.  Personal  earnings  of  the  debtor  or  his  minor 
children  for  three  months  previous  to  the  rendition  of  judgment,  on  an  affidavit  that 
it  is  necessary  for  the  support  of  the  family.  7.  All  articles,  specimens,  and  cabinets 
of  natural  history  or  science,  unless  the  same  are  used  for  a  show  or  for  makir|t 
money. 

In  addition  to  the  above,  to  a  head  of  a  family  who  is  a  drayman,  one  horse,  hai- 
ness,  and  dray  ;  or  who  is  engaged  in  agriculture,  one  horse  or  yoke  of  cattle,  the 
necessary  gear,  and  one  wagon  ;  or,  if  a  person  practicing  medicine,  one  horse, 
saddle  and  bridle,  and  books,  medicines,  and  instruments  not  exceeding  in  value  one 
hundred  dollars. 

Of  the  property  of  an  unmarried  woman  —  wearing  apparel  to  the  value  of  one 
hundred  dollars,  sewing-machine,  knitting-machine,  Bible,  hymn-book,  psalm-book, 
and  other  books  to  the  value  of  twenty-five  dollars. 

OKLAHOMA. —  There  is  no  distinction  between  law  and  equity,  and  but  one 
form  of  civil  action. 

Arrest  is  allowed  on  affidavit  that  defendant  is  indebted  to  plaintiff,  and 
that  plaintiff  believes  that  he  is  about  to  leave  the  Territor)%  taking  property  which 
should  be  applied  to  payment  of  his  claim  with  intent  to  defraud  him. 

Attachment  may  be  granted  in  civil  action  for  recover}'  of  money  on  affidavit 
showing  one  of  the  following  grounds  :     i.  That  the  defendant  is  a  foreign  corpora- 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS.       y^i 

tion  or  non-resident  (but  only  on  debt  or  demand  arising  on  contract,  judgment, 
or  decree).  2.  Has  absconded  with  intent  to  defraud  creditors.  3.  Has  left 
count)'  of  residence  to  avoid  ser^'ice  of  summons.  4.  Conceals  himself  so  that  sum- 
mons cannot  be  served  on  him.  5 .  Is  about  to  remove  propertj'  beyond  jurisdiction 
of  court  to  defraud  creditors.  6.  Is  about  to  'convert  property  into  money 
to  place  it  beyond  reach  of  creditors.  7.  Has  property  or  rights  of  action 
concealed.  8.  Has  assigned,  removed,  or  disposed  of  property',  or  is  about  to  do 
so  to  defraud  creditors.     9.  Fraudulently  contracted  debt  sued  on. 

Plaintiff  must  give  securit)'  unless  defendant  is  a  non-resident. 

Attachment  may  be  made  before  debt  is  due  when  defendant  has  been  guilty  of 
fraud. 

Garnishment.  May  issue  on  affidavit  that  plaintiff  has  reason  to  believe  that 
garnishee  has  property  of  defendant  in  his  possession,  or  is  indebted  to  him,  and,  if 
attachment  has  not  issued,  one  of  the  causes  authorizing  attachment. 

Judgments  are  liens  on  debtor's  lands  in  the  county  where  rendered  from 
first  day  of  the  term  when  rendered,  and  in  other  counties  from  date  of  filing 
transcript,  and  continue  in  force  five  years. 

Stay  Laws.  Execution  will  be  stayed  for  nine  months  in  actions  for  foreclosure 
e  f  mortgages  on  written  request  of  debtor  filed  within  twenty  days.  In  other  cases 
by  defendants  giving  bond  within  twenty  days  ;  on  amounts  under  six  dollars,  for  thirty 
<lays ;  under  twelve  dollars,  sixty  days;  between  twelve  and  twenty  dollars,  ninety 
clays  ;  between  forty  and  one  hundred  dollars,  one  hundred  and  fifty  days  ;  and  over  one 
hundred  dollars,  one  hundred  and  eight)-  days.  * 

Exemptions.  Homestead,  not  exceeding  t«-o  thousand  dollars  in  value,  and  not 
exceeding  one  hundred  and  sixt)'  acres,  outside  of  a  city  or  village,  or  tvvo  contiguous 
house  lots  in  a  cit}'  or  village.  If  debtor  has  no  homestead  he  shall  have  exempt  in 
lieu  thereof  personal  property  to  value  of  five  hundred  dollars.  In  addition  there  is 
exempt  to  head  of  family :  Family  Bible,  pictures,  school-books  and  library 
for  use  of  family  ;  seat  or  pew  in  church  ;  lot  in  burial  ground  ;  all  necessary  wear- 
ing apparel  of  debtor  and  family ;  all  beds,  bedsteads,  and  bedding  for  use 
of  family ;  stoves  and  appendages,  not  exceeding  four,  and  other  household  fur- 
niture, of  the  value  of  one  hundred  dollars  ;  one  cow,  three  hogs,  and  all  pigs  under 
six  months  old,  and,  if  the  debtor  be  engaged  in  agriculture,  also  one  yoke  of  oxen,  or 
one  pair  of  horses,  ten  sheep  and  wool  therefrom,  and  food  for  stock  for 
three  months  ;  one  wagon,  cart,  or  dray,  two  plows,  one  drag,  gear  for  team,  and 
other  farming  implements  of  value  of  fifty  dollars  ;  provisions  and  fuel  for  six 
months  ;  tools  of  mechanic  or  miner  ;  library  and  implements  of  professional  men  ; 
wages  of  laborers,  mechanics,  and  clerks  ;  heads  of  families  for  sixt}'  days  ;  and  pen- 
sion money,  or  proceeds  thereof,  to  amount  of  two  thousand  dollars. 

OREGON. —  Actions.  All  distinctions  are  abolished;  there  is  but  one  form, 
which  is  prosecuted  in  the  name  of  the  real  party  in  interest,  except  in  case  of  execu- 
tors, administrators,  etc,  and  which  is  begun  by  filing  a  complaint  with  the  clerk 
of  the  court,  and  causing  at  any  time  a  summons  to  issue  thereon  to  be  served  on  the 
defendant. 

Arrest.  Defendant  may  be  arrested  at  any  time  before  judgment,  on  filing  an 
afiSdavit  with  the  clerk  of  the  court,  i.  In  an  action  for  the  recovery  of  money,  or 
damages  on  a  contract  when  the  defendant  is  a  non-resident,  or  is  about  to  remove 
from  tiie  State,  or  when  the  action  is  for  injuries  to  person  or  character,  or  injuries 


742 


ABSTRACT  OF   THE    COLLECTION   OF  DEBTS. 


to,  or  wrongful  taking,  detaining,  or  converting  of  property.  2.  In  an  action  for  a 
fine  or  penalty,  or  on  a  promise  to  marry,  or  for  money  received,  or  property 
embezzled  or  fraudulently  misappropriated,  or  converted  by  a  public  officer  or  attorney, 
or  officer  of  a  corporation,  as  such,  or  by  a  factor,  agent,  or  broker,  or  for  miscon- 
duct or  neglect  in  office,  or  in  professional  employment.  3.  In  an  action  to  recover 
possession  of  personal  property  detained,  when  it  is  concealed  so  that  it  cannot 
be  found  by  the  officer,  with  intent  to  deprive  the  plaintiff  of  the  use  thereof. 
4.  Where  defendant  was  guilty  of  fraud  in  contracting  debt  or  in  concealing  or  dis- 
posing of  property  for  which  action  is  brought.  5.  Where  defendant  has  removed, 
or  disposed  of  his  property,  or  is  about  to  do  so,  with  intent  to  defraud  creditors. 

Attachment.  Defendant's  property  may  be  attached  at  the  time  of  issuing 
the  summons,  or  at  any  time  thereafter,  on  plaintiff's  filing  an  affidavit  show- 
ing, I,  that  defendant  is  indebted  to  him  upon  a  contract  for  the  direct  payment  of 
money,  specifying  the  amount  due  above  all  legal  set-offs,  and  that  the  payment  has 
not  been  secured  by  mortgage,  etc.;  or,  2,  that  defendant  is  indebted  to  plaintiff, 
specifying  the  amount,  and  that  defendant  is  a  non-resident ;  and  3,  that  the  sum 
claimed  is  a  bona  fide  debt,  and  that  attachment  is  not  sought  and  action  prosecuted 
to  hinder,  delay,  or  defraud  creditors. 

Garnishment  is  allowed  on  original  process  by  attachment ;  there  is  no 
distinctive  process. 

Judgment  is  a  lien  on  real  estate  in  the  county  where  it  was  rendered,  from  the 
date  of  docketing,  and  in  other  counties  from  the  filing  a  transcript  in  such  county, 
and  continues  as  such  for  ten  years,  and  bears  interest  at  eight  per  cent,  unless 
a  different  rate  was  contracted  for,  when  such  rate  is  taken,  not  exceeding  ten  per 
cent. 

There  is  no  stay  of  execution  in  Oregon,  except  on  appeal. 

Exemptions.  i.  Books,  pictures,  and  musical  instruments  to  the  value  of 
seventy-five  dollars.  2.  Necessary  wearing  apparel  of  the  debtor  to  the  value  of  one 
hundred  dollars,  or,  if  a  householder,  clothing  for  each  member  of  the  family  to  the 
value  of  fifty  dollars.  3.  Tools,  implements,  apparatus,  team,  vehicle,  harness, 
or  library  necessary  for  the  trade,  occupation,  or  profession 'of  the  debtor  to  the  valuft 
of  four  hundred  dollars,  and  sufficient  food  for  the  team  for  sixty  days.  4.  Of  prop- 
erty of  a  householder,  ten  sheep  and  one  year's  fleece,  or  the  yarn  or  the  cloth 
therefrom,  two  cows,  five  swine  ;  household  goods,  furniture,  and  utensils  to  the 
value  of  three  hundred  dollars  ;  food  for  animals  for  three  months,  and  for  the  fam- 
ily for  six  months,  and  a  seat  or  pew  in  church.  For  each  white  male  citizen 
above  the  age  of  sixteen,  one  gun  and  one  revolver.  5.  Homestead  not  exceed- 
ing $1,500  in  value  and  160  acres  in  extent. 

PENNSYLVANIA. —  Actions.  Personal  actions,  except  in  some  special 
cases,  are  begun  by  a  summons,  and  the  common  law  prevails. 

Arrest.  A  writ  of  capias  may  issue  in  actions  of  tort.  No  person  can  be 
arrested  in  an  action  to  recover  money  due  on  a  judgment  or  a  contract,  or  for  dam- 
ages for  the  non-performance  of  a  contract  except  in  proceedings,  as  for  contempt, 
to  enforce  civil  process  ;  in  actions  for  fines  or  penalties,  for  breach  of  promise  of 
marriage,  for  money  collected  by  a  public  officer,  or  for  misconduct  or  neglect 
in  office  or  professional  employment.  But  after  bringing  suit,  before  or  after 
judgment,  defendant  may  be  arrested,  on  affidavit  that  he  is  about  to  remove 
his  property  beyond  the  jurisdiction  of  the  court  to  defraud  creditors,  or  has  done  so, 


ABSTRACT  OF  THE   COLLECTION  OF  DEBTS.       743 

or  that  he  has  property  fraudulently  concealed,  or  rights  of  action  or  interest  in  pub- 
lic or  corporate  stocks,  which  he  refuses  to  apply  to  the  payment  of  his  debts,  or  that 
he  fraudulently  contracted  the  debt.  In  these  cases  affidavit  must  be  made  of  the 
necessary  facts. 

Attachment.  Property  of  the  defendant  maybe  attached,  if  the  plaintiff  makes 
affidavit  that  the  defendant  is  justly  indebted  to  him  in  a  sum  exceeding  one  hundred 
dollars,  stating  the  nature  and  amount  of  the  claim,  and  that  defendant  is  about  to 
remove  his  property  out  of  the  jurisdiction  of  the  court,  with  intent  to  defraud  cred- 
itors, or  that  he  has  property  or  rights  that  he  fraudulently  conceals,  or  that  he  has 
assigned,  disposed  of,  or  concealed  his  property,  or  is  about  to  do  so,  with  intent  to 
defraud  creditors,  or  that  he  fraudulently  contracted  the  debt.  The  property  of  non- 
residents may  be  attached  without  affidavit,  except  in  actions  ex  delictu.  Plaintiff 
must  give  security. 

Garnishment.  Attachment  may  issue  after  judgment,  on  the  property  or  debts 
due  the  defendant  in  the  hands  of  third  parties,  and  garnishee  may  be  summoned  in. 

Judgment  bears  interest  at  six  per  cent.,  and  is  a  lien  on  real  estate  in  the 
county  where  rendered.  It  may  be  transferred  to  other  counties  and  continues  a  lien 
for  five  years,  but  after  that  may  be  revived  by  scire  facias. 

Stay  Laws.  Stay  of  execution  is  allowed  on  judgments  in  actions  of  contract, 
by  giving  bond  with  surety,  or  offering  sufficient  unincumbered  real  estate,  as  follows  : 
On  sums  not  exceeding  two  hundred  dollars,  six  months  ;  between  two  hundred  and 
five  hundred  dollars,  nine  months  ;  over  five  hundred  dollars,  one  year.  In  justices' 
courts,  as  follows  :  On  sums  not  exceeding  twenty  dollars,  three  months ;  between 
twenty  and  sixty  dollars,  six  months  ;  over  sixty  dollars,  nine  months.  There  is  no 
stay  on  judgments  for  one  hundred  dollars  or  less,  for  wages  of  manual  labor. 

Exemptions.  Property  to  the  value  of  three  hundred  dollars,  exclusive  of 
wearing  apparel  of  the  defendant  and  his  family,  and  all  Bibles  and  school-books  in 
use  in  the  family,  and  sewing-machine.  There  is  no  exemption  in  judgment  for 
wages  of  manual  labor  for  fifty  dollars  or  less,  or  for  board  for  four  weeks  or  less. 
There  is  no  homestead  exemption. 

RHODE  ISLAND. — Actions  are  begun  by  original  writ  of  summons,  arrest 
or  attachment.     The  common  law,  as  modified  by  statute,  prevails. 

Arrest.  Writ  of  arrest  may  issue,  i.  To  recover  debts  which  accrued  before 
July  I,  1870.  2.  In  actions  on  penal  statutes  or  of  trover,  detinue,  trespass,  trespass 
on  the  case,  ejectment,. and  scire  facias  against  bail  in  criminal  cases.  3.  In  any 
action  of  contract,  on  affidavit  to  be  annexed  to  the  writ,  that  the  claim  is  just  and 
that  the  plaintiff  expects  to  recover  enough  to  give  the  court  jurisdiction  ;  and  also, 
either  that  defendant  is  about  to  leave  the  State  without  leaving  sufficient  property  to 
be  taken  on  execution,  or  that  the  defendant  committed  fraud  in  contracting  the  debt 
or  in  concealing  or  disposing  of  his  property.  Plaintiff,  after  commencement  of  the 
action,  may  sue  out  the  writ  to  arrest  at  any  time  before  judgment,  by  making  a 
similar  affidavit.  No  bond  is  required.  No  female  can  be  arrested  in  action  of 
contract,  nor  any  voter  on  election  day,  or  the  day  preceding,  or  following. 

Attachment.  Writ  of  attachment  issues  against  property  of  the  defendant  and 
personal  property  in  the  hands  of  third  parties,  as  trustees,  on  an  affidavit  by  the 
plaintiff  that  he  has  a  good  cause  of  action  and  expectation  of  recovering  enough  to 
give  jurisdiction  to  the  court,  and  either  that  defendant  is  a  foreign  corporation,  or 
non-resident,  or  is  out  of  the  State,  not  to  return  in  time  to  be  served  with  process, 


744 


ABSTRACT  OF   THE    COLLECTION  OF  DEBTS. 


returnable  to  the  next  term  of  court,  or  that  he  committed  fraud  in  contracting  the 
debt,  or  in  concealing  or  disposing  of  his  property,  or  that  since  contracting  the 
debt  the  defendant  has  had  property  which  he  refuses  to  apply  to  the  payment  of  the 
debt. 

Garnishment  issues  by  original  writ  of  attachment  against  personal  property  of 
the  defendant  in  the  hands  of  a  third  party.     {^See  Attachment.) 

Judgment  is  not  a  lien  on  real  estate.  It  bears  interest  at  six  per  cent.  There 
is  no  stay  of  execution,  except  for  cause  shown. 

Exemptions,  i.  Wearing  apparel  of  the  defendant  and  his  family,  if  he  has 
one.  2.  Working  tools  of  the  debtor  necessary  to  his  occupation  to  the  value  of 
two  hundred  dollars.  3.  Household  furniture  and  stores  of  a  housekeeper,  including 
beds  and  bedding,  not  exceeding  three  hundred  dollars  in  value.  4.  Bible,  school, 
and  other  books  in  use  in  his  family,  not  exceeding  three  hundred  dollars  in  value. 
5.  One  cow,  and  one  and  a  half  tons  of  hay  of  a  housekeeper.  6.  One  hog,  one 
pig,  and  pork  of  the  same,  of  a  housekeeper.  7.  Uniform  and  accoutrements  of  a 
militia  man.  8.  Pew  in  church.  9.  Lot  in  burying-ground.  10.  Mariners'  wages 
mtil  after  the  termination  of  the  voyage  on  which  they  were  earned.  11.  Debts 
'lecured  by  bills  of  exchange  or  negotiable  promissory  notes.  12.  Salary  or  wages 
\o  the  amount  of  ten  dollars,  when  the  cause  of  action  is  not  for  necessaries. 
J  3.  Wages  of  wife  or  minor  children  of  debtor.     There  is  no  homestead  exemption. 

SOUTH  CAROLINA. —  Actions.  All  distinctions  between  actions  are  abol- 
ished, and  there  is  but  one  form  for  all  civil  actions,  prosecuted  in  the  name  of  the 
leal  party  in  interest,  except  in  case  of  executors,  administrators,  etc.,  and  begun  by 
the  service  of  a  summons. 

Arrest.  Defendant  may  be  arrested  on  affidavit  on  the  part  of  the  plaintiff. 
u.  In  an  action  for  money  received  or  property  embezzled  or  fraudulently  misappro- 
jjriated  by  a  public  officer  or  an  attorney,  or  officer  or  agent  of  a  corporation,  as  such, 
or  factor,  agent,  or  broker,  or  for  any  misconduct  or  neglect  in  official  or  professional 
•employment.  2.  In  an  action  to  recover  possession  of  personal  property  fraudu- 
lently detained,  or  when  the  property  is  so  disposed  of  that  it  cannot  be  found  by  the 
sheriff,  and  with  intent  to  deprive  plaintiff  of  benefit  of  the  same.  3.  Where  the 
defendant  was  guilty  of  fraud  in  contracting  the  debt,  or  in  concealing  or  disposing 
of  the  property  sued  for,  or  where  the  action  is  for  damages  for  fraud  or  deceit.  4. 
Where  the  defendant  has  removed  or  disposed  of  his  property,  or  is  about  to  do  so, 
with  intent  to  defraud  creditors.  5.  Suit  may  be  brought  on  a  note,  etc.,  not  yet 
due,  and  arrest  made  on  affidavit  by  plaintiff  that  defendant,  being  a  resident  of  the 
State,  is  about  to  abscond  or  depart  from  the  State,  and  that  plaintiff  had  no  knowl- 
edge of  his  intention  to  leave  the  State  when  he  took  the  note.  6.  In  action  for 
recovery  of  damages,  not  arising  on  contract  when  defendant  is  a  non-resident  or 
about  to  remove  from  the  State,  or  when  action  is  for  injury  to  person  or  character, 
or  for  injuring  or  wrongfully  taking,  detaining,  or  converting  property. 

Attachment  may  issue  in  an  action  of  contract  to  recover  money  or  property  or 
damages  for  the  wrongful  conversion  or  detention  of  personal  property  or  for  inju- 
ries to  person  or  property,  or  where  the  defendant  is  a  foreign  corporation  or  a  non- 
resident, or  has  absconded  or  concealed  himself,  or  is  about  to  remove  his  property 
from  the  State,  or  has  assigned,  disposed  of,  or  secreted  his  property,  or  is  about  to 
do  so,  with  intent  to  defraud  creditors,   on  an  affidavit  stating  one  of   the  above 


ABSTRACT  OF   THE    COLLECTION    OF  DEBTS. 


745 


grounds,  and  giving  security  to  defendant.     Attachment  will  lie  for  a  debt  not  due  if 
fraud  be  shown  in  evading  the  debt. 

Garnishment  is  affected  only  by  attachment. 

Judgment  is  a  lien  on  real  property  for  ten  years  ;  and  judgments  for  money 
bear  interest  at  seven  per  cent. 

There  is  no  stay  of  execution. 
.    Exemptions.     Homestead  of  the  head  of  a  family  not  exceeding  in  value  one 
thousand  dollars   with   the  yearly  products  thereof,   and  personal   property  to  the 
amount  of  five  hundred  dollars. 

SOUTH  DAKOTA. — Actions  are  commenced  by  service  of  summons  and 
must  be  prosecuted  by  the  real  party  in  interest. 

Arrest.  An  order  of  arrest  may  be  obtained  in  the  following  cases  on  plaintiff's 
filing  an  affidavit  setting  forth  the  facts  on  which  it  is  asked,  and  furnishing  security, 
viz.  :  In  an  action  for  damages  not  founded  on  contract,  where  defendant  is  a 
non-resident,  or  is  about  to  remove  from  the  State,  or  where  action  is  for  injury  to 
person  or  character  or  for  injury  to  or  wrongfully  taking,  detaining,  or  converting 
property  ;  in  an  action  for  a  fine  or  penalty,  or  on  a  promise  to  marry,  or  for  money 
received  on  property  embezzled,  or  fraudulently  misapplied  by  a  public  officer, 
attorney,  or  other  person,  in  a  fiduciary  capacity,  or  for  any  misconduct  or  neglect  in 
office  or  in  a  professional  employment  in  an  action  for  recovery  of  personal  property 
disposed  of  or  concealed  to  prevent  its  being  taken  by  the  sherifT,  or  where  debt  was 
fraudulently  contracted,  or  where  debtor  has  removed  his  property  or  is  about  to  do 
so  to  defraud  creditors. 

Imprisonment  for  debt  is  abolished. 

Attachment  may  issue  in  action  on  contract  for  recovery  of  money  only,  or  in 
action  for  wrongful  conversion  of  personal  property,  against  a  foreign  corporation  or 
non-resident,  or  a  defendant  who  has  absconded  or  conceals  himself,  or  is  about  to 
remove  his  property  from  the  State,  or  has  disposed  of  his  property,  or  is  about  to  do 
to  with  intent  to  defraud  creditors,  or  is  about  to  remove  from  the  county,  to 
permanently  change  residence  without  giving  security  for  debt  after  demand. 

Plaintiff  must  file  affidavit  stating  ground  of  claim  and  amount  and  one  of  causes 
above  stated  and  giving  security. 

Attachment  may  issue  in  certain  cases  before  maturity  of  claim. 

Garnishment  not  authorized. 

Judgment  is  a  lien  on  defendant's  real  estate  in  every  county  where  it  is 
docketed,  for  ten  years  from  time  of  docketing  in  the  county  where  rendered. 

Exemption.  Homestead  not  exceeding  one  acre  in  a  town  plot,  or  one  hundred 
and  sixty  acres  elsewhere,  with  house  and  buildings,  to  the  extent  of  five  thousand 
dollars.  All  family  pictures,  pew,  burial  lot,  family  Bible  and  school-books,  family 
library  not  exceeding  in  value  two  hundred  dollars,  wearing  apparel  of  debtor  and 
family,  provisions  and  fuel  for  one  year,  and  other  personal  property  to  be  selected 
by  debtor  not  exceeding  in  value  seven  hundred  and  fifty  dollars. 

Instead  of  the  seven  hundred  and  fifty  dollars  exemption,  debtor,  the  head  of  a 
family  may  select  the  following :  —  Books  and  musical  instruments  for  use  of  family 
not  exceeding  two  hundred  dollars,  household  and  kitchen  furniture  not  exceeding 
two  hundred  dollars,  two  cows,  five  swine,  two  yoke  of  oxen  or  one  span  of  horses 
or  mules,  one  hundred  sheep  and  their  lambs  under  six  months  old,  and  all  wool 


746       ABSTRACT  OF  THE   COLLECTION  OF  DEBTS. 

from  the  same  or  cloth  or  yarn  manufactured  therefrom,  food  for  animals  for  one 
year,  one  wagon,  one  sleigh,  two  plows,  one  harrow,  farming  machinery  and  utensils 
not  exceeding  twelve  hundred  and  fifty  dollars  ;  tools  and  implements  of  a  mechanic 
used  for  his  trade  or  business,  and  stock  in  trade  not  exceeding  two  hundred  dollars  ; 
library  and  instruments  of  a  professional  man  not  exceeding  three  hundred  dollars. 

TENNESSEE. — Actions.  There  is  only  one  form  for  all  actions,  which  are 
begun  by  a  summons  issued  by  the  clerk  of  the  court  and  directed  to  the  sheriff. 
Plaintiff  must  usually  give  security  for  costs. 

Arrest.     There  is  no  arrest  for  debt  in  Tennessee. 

Attachment  rr^ay  be  had  at  the  commencement  of  the  action  for  a  debt  or 
demand  due  or  after  action  begun,  either  before  or  after  judgment,  for  any  cause, 
where,  i,  the  debtor  is  a  non-resident ;  2,  or  is  about  to  remove  himself  or  his 
property  out  of  the  State  ;  3,  or  has  removed  out  of  the  county  of  his  residence 
privately,  or  is  about  to  do  so  ;  4,  or  has  concealed  himself  so  that  process  cannot  be 
served  on  him  ;  5,  has  absconded  or  concealed  himself  or  his  property  ;  6,  has 
fraudulently  disposed  of  his  property  or  is  about  to  do  so  ;  7,  where  any  person 
liable  for  a  debt,  and  a  non-resident,  dies  leaving  property  within  the  State  ;  8,  where 
defendant  is  a  resident  of  the  county,  but  summons  is  returned  "not  found  in  the 
county."  The  plaintiff  or  his  agent  must  make  an  oath  in  writing  of  the  nature  and 
amount  of  the  debt,  and  one  of  the  above  causes,  and  give  security  to  the  defendant. 
Attachment  may  issue  on  any  ground  but  the  first-named,  or  in  favor  of  accomodation 
endorser  or  surety  against  principal  before  debt  is  due. 

Garnishment.  Where  property,  choses  in  action,  or  effects  of  the  defendant 
are  in  the  hands  of  a  third  party,  or  such  party  is  indebted  to  the  defendant,  attach- 
ment may  issue  by  garnishment.  Also  on  execution,  where  the  sheriff  cannot  find 
sufficient  property  to  satisfy  the  execution. 

Judgment  is  a  lien  on  real  estate,  in  the  county  where  rendered,  from  the  date  of 
rendition,  and  in  other  counties  from  the  date  of  registration  of  a  certified  copy ;  but 
the  lien  is  lost  unless  execution  is  taken  out  and  the  land  sold  within  twelve  months 
after  rendition.     Judgment  bears  interest  at  six  per  cent. 

Stay  of  Execution.  On  judgments  before  a  justice  of  the  peace  executioa 
will  be  stayed  for  eight  months  on  giving  security  for  debt,  interest,  and  costs, 

Exemptions.  Thirty  dollars,  wages  of  a  mechanic  or  laboring  man.  Personal 
property  of  the  head  of  a  family,  two  beds,  bedsteads  and  bedding,  and  for  every 
three  children  one  additional  bed,  etc.  ;  the  bedsteads  not  to  exceed  twenty-five 
dollars  in  value ;  two  cows  and  calves,  and  if  the  family  consists  of  six  persons  or 
more,  three  cows  and  calves  ;  one  dozen  knives  and  forks,  dozen  plates,  six  dishes, 
set  of  tablespoons,  set  of  teaspoons,  tray,  two  pitchers,  waiter,  coffee-pot,  tea-pot, 
canister,  cream-jug,  one  dozen  cups  and  saucers,  dining-table,  and  two  table 
cloths,  dozen  chairs,  bureau,  not  to  exceed  forty  dollars  in  value,  safe  or  press, 
wash-basin,  bowl  and  pitcher,  washing-kettle,  two  washing-tubs,  churn,  looking 
glass,  chopping-axe,  spinning-wheel,  loom  and  gear,  pair  cotton-cards,  pair  wool- 
cards,  cooking-stove  and  utensils,  set  ordinary  cooking  utensils,  meal-sieve,  wheat- 
sieve,  cradle,  Bible  and  hymn-book,  and  all  school-books,  two  horses  or  two  mules, 
or  one  horse  and  one  mule,  or  one  horse  or  mule,  and  one  yoke  of  oxen  and  gear, 
two-horse  or  one-horse  wagon  to  the  value  of  seventy-five  dollars,  and  the  harness, 
man's  saddle,  woman's  saddle,  two  riding-bridles,  twenty-five  barrels  of  corn,  twenty 


ABSTRACT  OF  THE   COLLECTION  OF  DEBTS. 


7A7 


bushels  of  wheat,  five  hundred  bundles  of  oats,  five  hundred  bundles  of  fodder,  one 
stack  of  hay  to  the  value  of  twenty  dollars  ;  if  the  family  is  less  than  six  persons,  one 
thousand  pounds  of  pork  slaughtered  or  on  foot,  or  six  hundred  pounds  of  bacon  ;  or 
if  the  family  consists  of  more  than  six  persons,  twelve  hundred  pounds  of  pork,  or 
nine  hundred  pounds  of  bacon,  poultry  to  the  value  of  twenty-five  dollars,  fifty  sheep 
and  the  fleeces  -from  same,  twenty-five  stands  of  bees  and  the  products  of  same  ;  six 
cords  of  wood  or  one  hundred  bushels  of  coal,  one  sewing-machine,  one  hundred 
gallons  of  sorghum  molasses,  one  hundred  pounds  soap,  fifty  pounds  lard,  one 
hundred  pounds  flour,  fifty  pounds  salt,  one  hundred  pounds  beef  or  mutton,  twenty 
pounds  coffee,  fifty  pounds  sugar,  three  bushels  meal,  one  bushel  dried  beans,  one 
bushel  dried  peas,  fifty  bushels  of  Irish  potatoes,  fifty  bushels  sweet  potatoes,  ten 
bushels  turnips,  one  pair  andirons,  one  clock,  one  pound  each  of  pepper,  spice,  and 
ginger,  canned  fruit  put  up  for  the  family  not  exceeding  twenty  dollars  in  value, 
twenty  bushels  of  pea-nuts,  three  strings  of  red  peppers,  four  gourds,  carpet  in  use, 
not  exceeding  twenty-five  dollars  in  value,  and  two  hundred  bushels  of  cotton-seed. 
If  the  head  of  the  family  is  engaged  in  agriculture,  two  plows,  two  hoes,  grubbing-hoe, 
cutting- knife,  harvest-cradle,  plow-gears,  pitchfork,  rake,  three  iron  wedges,  five 
sheep,  ten  stock  hogs.  Also  the  tools  of  a  mechanic,  and  if  he  be  the  head  of  a 
family,  two  hundred  dollars'  worth  of  lumber  or  material  or  products  of  his  labor. 
One  gun  to  every  male  person,  and  to  every  female  who  is  the  head  of  a  family.  To 
a  head  of  a  family,  fifty  pounds  of  picked  cotton,  twenty-five  pounds  wool,  leather 
for  winter  shoes  ;  also  three  hundred  pounds  of  tobacco  in  the  hands  of  the  producer'. 
A  homestead  of  the  head  of  a  family  of  the  value  of  one  thousand  dollars. 

TEXAS. — Actions  are  begun  by  petition  filed  with  the  clerk  of  the  court  upo.Ai 
which  a  citation  issues  to  the  defendant. 

Arrest  for  debt  is  abolished. 

Attachments  may  issue  upon  an  affidavit  by  the  plaintiff  or  his  attorney,  stating 
that  the  debt  is  a  just  one,  and  the  amount  of  the  same,  together  with  one  of  th«» 
following  grounds:  I.  That  defendant  is  a  non-resident  or  a  foreign  corporation.  2. 
That  he  is  about  to  remove  out  of  the  .State,  and  has  refused  to  pay  or  secure  plaint  • 
iff's  claim.  3.  Or  that  he  secretes  himself,  so  that  process  cannot  be  served  on  him. 
4.  That  he  has  secreted  his  property  for  the  purpose  of  defrauding  creditors,  or  is 
about  to  do  so.  5.  That  he  is  about  to  remove  his  property  out  of  the  .State,  without 
leaving  sufficient  remaining  for  the  payment  of  his  debts.  6.  That  he  is  about  to  re- 
move his  property  beyond  the  jurisdiction  of  the  court,  with  intent  to  defraud  cred- 
itors. 7.  That  he  is  about  to  transfer  or  secrete  his  property,  or  has  done  so,  with 
intent  to  defraud  creditors.  8.  That  he  is  about  to  convert  his  property  into  money, 
for  the  purpose  of  defrauding  creditors,  g.  That  the  debt  is  due  for  property  obtained 
under  false  pretences.  And  he  must  also  swear  that  the  attachment  is  not  sued  out 
for  the  purpose  of  injuring  the  defendant,  and  that  the  original  petition  is  true,  and 
give  security  to  defendant. 

Garnishment  may  issue  after  suit  brought  on  affidavit  of  plaintiff  that  the  amount 
claimed  is  just,  due,  and  unpaid  ;  that  he  does  not  know  of  any  property  of  defendant 
not  exempt,  sufficient  to  satisfy  the  claim,  and  that  he  believes  that  any  parties  (naminof 
them)  are  indebted  to  the  defendant,  or  have  property  or  effects  of  the  defendant  ; 
also,  where  judgment  has  been  rendered,  or  attachment  sued  out  on  affidavit. 

Judgment  is  a  lien  on  real  estate  in  the  county  where  it  was  rendered,  and  in 


748 


ABSTRACT  OF  THE   COLLECTION  OF  DEBTS. 


other  counties  it  becomes  such  by  filing  a  transcript.  The  lien  continues  for  ten 
years,  but  unless  execution  issues  within  twelve  months  it  ceases  to  bind  the  property. 

Stay  Laws.  Stay  of  e.xecution  is  allowed  only  in  justices'  courts  for  three  months, 
on  giving  bond  with  good  security. 

Exemptions.  A  homestead  of  two  hundred  acres  not  in  any  town  or  city,  or  a 
lot,  or  lots,  in  a  city,  town,  or  village,  not  to  exceed  five  thousand  dollars  in  value. 
Also  to  every  head  of  a  family,  all  household  and  kitchen  furniture,  all  implements 
of  husbandry,  tools  or  apparatus  of  trade  or  profession,  family  library,  and  family 
portraits  and  pictures,  five  milch  cows  and  calves,  two  yoke  of  oxen  with  yokes  and 
chain,  two  horses  and  one  wagon,  one  carriage  or  buggy,  one  gun,  twenty  hogs, 
twenty  head  of  sheep,  all  provisions  and  forage  for  home  use,  bridles,  saddles,  and 
harness  necessary  for  the  use  of  the  family,  and  a  lot  in  a  cemetery  ;  to  every  person 
not  the  head  of  a  family,  a  horse,  bridle,  saddle,  necessary  wearing  apparel,  tools, 
apparatus,  and  books  of  his  private  library,  and  burial  lot. 

UTAH. — Actions.  There  is  but  one  form  of  civil  action,  which  is  commenced 
hy  the  filing  of  a  complaint  and  the  issuing  of  a  summons. 

Arrest.  Defendant  may  be  arrested  in  the  following  cases,  viz.:  In  an  action 
Vor  recovery  of  money  or  damages  on  a  cause  of  action  arising  on  contract,  when 
about  to  depart  from  the  Territory  to  defraud  creditors,  or  in  an  action  for  willful  in- 
jury to  person,  property,  or  character,  or  in  an  action  for  fine  or  penalty,  or  breach  of 
promise  of  marriage,  or  for  money  or  property  embezzled  or  fraudulently  misapplied 
by  a  public  officer,  officer  of  a  corporation,  attorney,  factor,  broker,  agent,  or  clerk 
in  the  course  of  his  employment  as  such,  or  by  any  other  person  acting  in  a  fiduciary 
capacity,  or  for  misconduct  or  neglect  in  office  or  in  a  professional  employment,  or 
for  willful  violation  of  duty  ;  in  an  action  to  recover  personal  property  unjustly  detained, 
when  the  same  has  been  concealed,  removed,  or  disposed  of,  so  that  it  cannot  be  found 
by  the  officer  ;  when  the  defendant  has  been  guilty  of  fraud  in  contracting  the  debt 
or  incurring  the  obligation  on  which  the  action  is  brought,  or  in  concealing  or  dis- 
posing of  the  property  for  the  taking,  detention,  or  conversion  of  which  the  action  is 
brought ;  when  the  defendant  has  removed  or  disposed  of  his  property  with  intent  to 
defraud  his  creditors,  or  is  about  to  do  so.  The  order  of  arrest  may  be  issued  when 
it  is  made  to  appear  to  the  judge,  by  affidavit  of  the  plaintiff  or  his  attorney,  or  some 
other  person,  that  a  sufficient  cause  of  action  exists,  that  the  case  is  one  of  those 
above-mentioned,  and  that  one  of  the  foregoing  causes  for  an  arrest  exists.  Plaintiff 
must  also  file  a  bond  with  sureties  for  damages  and  costs. 

Attachment.  Attachment  may  issue  at  commencement  of  the  suit  or  at  any 
time  thereafter,  on  filing  with  the  clerk  of  the  court  an  affidavit  showing  that  defend- 
ant is  indebted  to  plaintiff,  specifying  the  amount  above  all  legal  set-offs,  and  whether 
upon  a  judgment  or  an  express  or  implied  contract,  and  that  the  same  has  not  been 
secured  by  mortgage  or  pledge,  or  that  if  originally  so  secured,  that  the  security  has 
become  valueless  without  any  act  of  the  plaintiff,  that  the  same  is  an  actual,  bona  fide, 
existing  demand,  due  and  owing  from  defendant  to  plaintiff,  and  that  the  attachment 
is  not  sought  nor  the  action  prosecuted  to  hinder,  delay,  or  defraud  any  creditor,  and 
specifying  one  or  more  of  the  following  causes  :  That  the  defendant  is  a  non-resident, 
or  has  departed  or  is  about  to  depart  from  the  Territory  to  the  injury  of  his  creditors, 
or  stands  in  defiance  of  an  officer,  or  conceals  himself  so  that  process  cannot  be  served 
upon  him,  or  has  assigned,  disposed  of,  or  concealed  any  of  his  property  with  intent 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 


749 


to  defraud  his  creditors,  or  is  about  to  do  so,  or  has  fraudulently  contracted  the  debt 
or  incurred  the  obligation  on  which  the  action  is  [broujjht.  riaintiff  must  also  give 
security  for  costs  and  damages. 

Garnishment.  Property  or  debts  due  to  defendant  from  third  persons  may  be 
garnished. 

Judgments  are  liens  upon  real  estate  owned  by  the  defendant  in  the  county,  for 
five  years  from  the  time  of  docketing,  and  may  be  made  liens  in  any  other  county 
from  the  time  of  filing  a  transcript  with  the  recorder. 

Stay  Laws.     There  is  no  provision  for  the  stay  of  execution,  except  by  appeal. 

Exemptions.  Chairs,  tables,  desks,  and  books  of  the  value  of  two  hundred 
dollars  ;  necessary  household  furniture,  etc.,  of  the  value  of  three  hundred  dollars; 
paintings  made  by  a  member  of  the  family,  provisions  on  hand  for  three  months,  two 
cows  with  their  sucking  calves,  and  two  hogs  and  all  sucking  pigs  ;  farming  imple- 
ments of  the  value  of  three  hundred  dollars  ;  two  oxen,  horses,  or  mules,  and  harness, 
and  food  for  animals  for  sixty  days  ;  a  cart  or  wagon  ;  seed,  grain,  or  vegetables,  not 
exceeding  in  value  two  hundred  dollars  ;  tools  and  implements  of  a  mechanic  or  arti- 
san, not  exceeding  in  value  five  hundred  dollars  ;  the  seal  and  records  of  a  notary 
public  ;  the  instruments  and  chests  of  a  surgeon,  physician,  surveyor,  or  dentist,  with 
their  libraries,  and  the  law  libraries  and  office  furniture  of  attorneys  and  judges,  and 
libraries  of  ministers ;  the  cabin  of  a  miner,  not  exceeding  five  hundred  dollars  in 
value,  and  his  tools  and  appliances  not  exceeding  in  value  two  hundred  dollars  ;  two 
oxen,  horses,  or  mules,  and  harness  and  vehicle  by  which  a  cartman,  huckster, 
teamster  or  other  laborer  habitually  earns  his  living  ;  and  one  horse,  harness,  and 
vehicle  of  a  physician,  surgeon,  or  minister,  with  feed  for  the  horse  for  three  months; 
one-half  the  debtor's  earnings  for  personal  services  in  sixty  days,  if  necessary  for  the 
support  of  his  family ;  life  insurance  policies  and  benefits  where  the  annual  premiums 
do  not  exceed  five  hundred  dollars  ;  all  arms,  ammunition,  and  accoutrements  required 
by  law  to  be  kept ;  to  the  head  of  a  family,  a  homestead  to  be  selected  by  the  debtor, 
not  exceeding  one  thousand  dollars  in  value,  and  the  further  sum  of  five  hundred 
dollars  to  his  wife,  and  two  hundred  and  fifty  dollars  for  each  other  member  of  his 
family. 

VERMONT. — Actions.  The  common  law  is  in  force,  and  the  old  actions  ar« 
in  use.     Process  is  by  writ  of  summons  or  attachment. 

Arrest.  Defendant  may  be  arrested  in  any  action  of  tort  for  want  of  attachable 
property  and  in  an  action  of  contract,  or  on  execution  issued  in  an  action  of  contract, 
on  an  affidavit  that  the  affiant  believes  that  defendant  is  about  to  abscond  or  remove 
from  the  State,  and  has  secreted  his  property  to  the  amount  of  twenty  dollars  not 
exempt. 

Attachment  issues  of  right  on  original  writ,  without  affidavit  or  bond.  Personal 
property  attached  must  be  taken  possession  of  by  the  officer  or  a  copy  of  process  and 
return  thereon  filed  in  town  clerk's  office  and  notice  given  to  defendant.  It  is  a  lien 
on  personal  property  for  thirty  days  after  judgment,  and  real  property  for  five  months 
from  such  judgment. 

Garnishment  is  called  Trustee  Process.  Actions  on  contracts  may  be  begun 
by  trustee  process,  and  any  persons  having  goods,  effects,  or  credits  may  be  summoned 
and  the  property  attached.  Debts  and  legacies,  absolutely  due,  may  be  so  attached, 
and  corporations  summoned  as  trustees. 


750       ABSTRACT  OF   THE    COLLECTION  OF  DEBTS. 

Judgments  bear  interest  at  six  per  cent.,  and  are  not  liens  on  real  property.  {See 
Attachment.)     There  is  no  stay  of  execution. 

Exemptions.  Suitable  apparel,  bedding,  tools,  arms,  and  articles  of  household 
furniture  necessary  for  the  debtor  and  his  family,  one  sewing-machine,  one  cow, 
worth  not  more  than  one  hundred  dollars,  the  best  swine,  or  meat  from  one  swine, 
ten  sheep,  and  one  year's  produce  in  wool,  yarn,  or  cloth,  forage  for  ten  sheep  and 
one  cow  for  the  winter,  ten  cords  of  firewood  or  five  tons  of  coal,  twenty  bushels  of 
potatoes,  all  growing  crops,  ten  bushels  of  grain,  one  barrel  of  flour,  three  swarms  of 
bees,  and  hives  and  produce  in  honey,  two  hundred  pounds  sugar,  lettered  gravestones, 
Bibles  and  other  books  used  in  the  family,  one  pew  in  church,  live  poultry  to  the  value 
of  ten  dollars,  professional  books  and  instruments  of  physician,  professional  books  of 
an  attorney  or  clergyman  to  the  value  of  two  hundred  dollars,  one  yoke  of  oxen  or 
steers,  and  forage  for  the  winter,  two  horses  kept  and  used  for  team  work,  and  such 
as  the  debtor  may  select  in  lieu  of  one  yoke  of  oxen  or  steers,  but  not  exceeding  two 
hundred  dollars  in  value,  and  forage  for  the  winter,  arms  and  equipments  used  by  any 
soldier  in  the  service  of  the  United  States  and  kept  as  mementoes  of  service,  one  two- 
horse  wagon  or  one  ox  cart,  one  sled  or  set  of  traverse  sleds,  two  harnesses,  two  halters, 
two  chains,  one  plow,  and  one  ox  yoke  which,  with  the  oxen,  steers,  or  horses  exempt- 
ed, shall  not  exceed  two  hundred  and  fifty  dollars  in  value,  also  mechanic's  tool  chest. 
A  homestead  of  a  housekeeper,  or  head  of  a  family,  to  the  value  of  five  hundred 
dollars. 

VIRGINIA. —  Actions.  The  common  law  forms  remain,  and  actions  are  be- 
jiin  by  original  writ  and  summons.  The  assignee  of  a  bond  or  note  may  sue  in  his 
</wn  name. 

Attachment  —  may  issue  on  affidavit  that  a  defendant  is —  i.  A  foreign  corpo- 
lation  ;  2.  Is  a  non-resident  of  the  State  having  estate  or  debts  due  him  within  the 
<  ounty  or  where  suit  is  brought ;  or  3.  Is  removing  or  about  to  remove  from  the 
State  with  intent  to  change  domicile  ;  or  4.  Has  removed  or  is  about  to  remove  property 
sued  for,  or  his  estate  or  a  material  part  thereof  so  that  execution  on  a  Judgment  will 
be  unavailing  ;  or  5.  Has  converted  or  is  about  to  convert  his  property  or  part- 
thereof  into  money,  securities,  etc.,  with  intent  to  hinder,  delay,  or  defraud  creditors; 
or  6.  Has  disposed  of  or  is  about  to  dispose  of  his  estate  or  part  thereof  with  like 
intent  ;  or  against  a  tenant  for  rent  not  due  but  payable  within  a  year,  on  affidavit 
stating  amount  of  rent  reserved,  when  payable,  and  that  tenant  has  within  thirty  day- 
removed  or  is  about  to  remove  his  effects  from  the  premises,  not  leaving  property 
liable  to  distress,  sufficient  to  satisfy  the  rent  to  become  payable  ;  or  against  a  vessel 
or  the  estate  of  the  master  or  owner  on  a  claim  for  materials  or  supplies,  or  for 
wharfage,  pilotage,  contract  for  transportation,  or  for  injury  to  person  or  property  by 
such  vessel  or  any  person  in  charge  of  her. 

Arrest.  There  is  no  imprisonment  for  debt,  but  defendant  may  be  arrested 
and  held  to  answer  on  an  affidavit  showing  the  cause  of  action,  the  amount  claimed, 
and  that  the  defendant  is  about  to  quit  the  State. 

Garnishment  is  allowed  on  original  attachment  against  any  person  having 
goods,  effects,  or  credits  of  defendant,  or  who  is  indebted  to  him,  and  also  on  writ 
of  /ieri  facias,  on  suggestion  by  judgment  creditor  that  there  is  a  lien  by  such  writ 
on  any  third  party  as  having  property  of  the  defendant. 

Judgment  is  a  lien  on  real  estate  in  the  county  ^vhere  rendered  from  the  first  day 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS.       jt^i 

of  the  term  when  rendered,  except  in  certain  cases  in  the  Circuit  Court  in  Richmond, 
and  every  other  county  from  the  time  of  docketing  in  such  county,  but  as  against  a 
purchaser  for  value  it  must  be  docketed  within  twenty  days,  or  fifteen  days  prior  to 
such  purchase.  The  lien  may  be  enforced  in  a  court  of  equity.  If  it  appears  to  the 
court  that  the  rents  and  profits  of  the  property  subject  to  the  lien  will  not  satisfy  th% 
judgment  in  five  years,  it  may  order  the  property,  or  part  of  it,  to  be  sold,  and  apply 
the  proceeds  to  discharge  the  judgment.     Judgments  bear  interest  at  si.x  per  cent. 

Stay  of  Execution.  There  is  no  stay  of  execution  except  on  appeal,  and  on 
small  claims  in  the  justice  courts,  in  which  on  security  being  given  execution  may  be 
stayed  for  a  period  not  exceeding  ninety  days. 

Exemptions.  To  a  householder — i.  Family  Bible.  2.  Family  pictures, 
school-books  and  library  for  family  use,  to  the  value  of  one-hundred  dollars.  3.  Seat 
or  pew  in  church.  4.  Lot  in  a  burying-ground.  5.  Necessary  wearing  apparel, 
beds,  bedding,  and  bedsteads,  stoves  and  appendages  put  up,  and  necessary  for  fam- 
ily use,  not  exceeding  three.  6.  One  cow  and  her  calf,  one  horse,  six  chairs,  one 
table,  six  knives,  forks,  and  plates,  one  dozen  spoons,  two  dishes,  two  basins,  one 
P'Ot,  one  oven,  six  pieces  wood  or  earthen  ware,  one  loom  and  appurtenances,  one 
safe  or  press,  one  spinning-wheel,  one  pair  of  cards,  one  axe,  two  hoes,  ten  barrels 
corn,  or  in  lieu  thereof  twenty- five  bushels  of  rye  or  buckwheat,  five  bushels  wheat, 
or  one  barrel  of  flour,  two  hundred  pounds  of  pork  or  bacon,  three  hogs,  forage  or 
hay  to  the  value  of  ten  dollars,  one  cooking-stove  and  utensils,  one  sewing-machine,  a 
mechanic's  tools  and  utensils  of  trade  to  the  value  of  one  hundred  dollars,  the  boat 
and  tackle  of  an  oysterman  or  fisherman  not  exceeding  two  hundred  dollars  ;  and  to 
a  laboring  man  being  a  householder,  wages  not  exceeding  fifty  dollars  per  month. 
If  the  debtor  is  engaged  in  agriculture,  one  yoke  of  oxen,  one  pair  of  horses  or 
mules,  with  the  necessary  gearing,  one  wagon  or  cart,  two  plows,  one  drag,  one  har- 
vest cradle,  one  pitchfork,  one  rake,  two  iron  wedges.  In  addition  to  the  above  is 
allowed  to  a  householder,  widow,  or  minor  children,  a  homestead  of  real  estate  or 
personal  property  to  the  value  of  two  thousand  dollars,  except  as  to  certain  preferred 
claims. 

WASHINGTON. —  Actions.  All  distinctions  in  the  forms  of  actions  are 
abolished.  They  must  be  prosecuted  by  the  real  party  in  interest,  and  are  com- 
menced by  filing  a  petition  and  serving  a  summons. 

Arrest.  Defendant  may  be  arrested  by  order  of  court  in  the  following  cases  : 
in  an  action  for  the  recovery  of  damages,  on  a  cause  of  action  not  arising  out  of  con- 
tract, when  defendant  is  a  non-resident  or  is  about  to  remove  from  the  State,  or  in 
an  action  for  injury  to  person  or  character,  or  for  injuring  or  wrongfully  taking, 
detaining,  or  converting  personal  property  ;  in  an  action  for  a  fine  or  penalty  or  on  a 
promise  to  marry,  or  for  money  received  or  property  embezzled  or  fraudulently  mis- 
applied or  converted  to  his  own  use  by  a  public  officer,  attorney,  an  officer  or  agent 
of  a  corporation,  a  factor,  agent,  broker,  or  other  person  acting  in  a  fiduciary  capac- 
ity, or  for  misconduct  or  neglect  in  office  or  professional  employment  ;  in  an  action 
to  recover  the  possession  of  personal  property  unjustly  detained,  when  it  has  been 
concealed,  removed,  or  disposed  of  so  that  it  cannot  be  taken  by  the  sheriff  with  in- 
tent that  it  shall  not  be  so  taken  as  to  deprive  plaintiff  of  benefit  thereof ;  when 
defendant  has  been  guilty  of  fraud  in  contracting  the  debt  or  incurring  the  obligation 
on  which  the  suit  is  brought,  or  in  concealing  or  disposing  of  property  sued  for  ;  or 


752 


ABSTRACT  OF    THE   COLLECTION  OF  DEBTS. 


has  removed  or  disposed  of  bis  property,  or  is  about  to  do  so,  with  intent  to  defraud 
creditors  ;  when  the  action  is  to  prevent  threatened  injury  to  property  in  which 
plaintiff  claims  an  interest ;  on  final  judgment  or  order  of  court  when  defendant 
having  no  property  subject  to  execution  has  money  which  he  ought  to  apply  in  pay- 
ment but  refuses,  with  intent  to  defraud  plaintiff. 

Plaintiff  must  furnish  security  for  costs  and  damages. 

Attachment  may  be  had  on  filing  affidavit  of  net  amount  due  and  that  attach- 
m.ent  is  not  sought,  nor  action  brought  to  hinder,  delay,  or  defraud  creditors,  and 
either  that  defendant  is  a  foreign  corporation,  or  a  non-resident ;  or  that  he  conceals 
himself,  or  has  absented  himself  from  his  usual  place  of  abode  so  that  process  cannot 
be  served  on  him  ;  or  that  he  has  removed  or  is  about  to  remove  property  from  the 
State  to  delay  or  defraud  creditors  ;  or  that  he  has  assigned,  secreted,  or  disposed  of 
property,  or  is  about  to  do  so  to  delay  or  defraud  creditors  ;  or  that  he  is  about  to 
convert  property  into  money  to  place  it  beyond  reach  of  creditors  ;  or  that  debt  was 
fraudulently  contracted  ;  or  that  damages  sued  for  are  for  injuries  arising  from  some 
felony  or  for  seduction. 

Attachment  may  issue  before  debt  is  due,  on  affidavit  that  defendant  is  about  to 
dispose  of  property  to  defraud  creditors  ;  or  that  he  is  about  to  remove  from  the 
State,  and  refuses  to  arrange  for  payment  of  debt,  which  contemplated  removal  was 
unknown  to  plaintiff  when  debt  was  contracted  ;  or  that  he  has  disposed  of  property 
to  defraud  creditors  ;  or  that  debt  is  for  property  obtained  by  false  pretenses. 

Plaintiff  must  give  security  for  costs  and  damages. 

Garnishment.  Debts,  credits,  and  personal  property  in  the  hands  of  third  per- 
sons may  be  attached. 

Judgment  is  a  lien  on  the  debtor's  lands  for  five  years  from  the  date  of  filing  in 
the  office  of  the  auditor  of  the  county  where  they  are  situated. 

Stay  of  Execution  is  allowed  on  judgments  as  follows :  in  the  Supreme  Court, 
on  all  sums  under  five  hundred  dollars,  thirty  days  ;  on  sums  between  five  hundred 
and  fifteen  hundred  dollars,  sixty  days  ;  on  sums  over  fifteen  hundred  dollars,  ninety 
days.  In  the  Superior  Court,  on  all  sums  under  three  hundred  dollars,  two  months  ; 
between  three  hundred  and  one  thousand  dollars,  five  months  ;  over  one  thousan.l 
dollars,  six  months. 

Exemptions.  To  every  person.  The  wearing  apparel  of  himself  and  family, 
all  private  libraries,  family  pictures  and  keepsakes,  fire-arms,  and  a  boat  worth  fiftj^ 
dollars.  To  a  householder  being  the  head  of  a  family,  a  homestead  of  the  value  of 
one  thousand  dollars,  while  occupied  by  such  family  ;  one  bed  and  bedding,  and  one 
additional  bed  and  bedding  for  every  two  additional  members  of  the  family,  and 
other  household  goods  of  the  value  of  one  hundred  and  fifty  dollars  ;  two  cows  with 
their  calves,  five  swine,  two  stands  of  bees,  twenty-five  domestic  fowls,  and  provis- 
ions and  fuel  for  six  months.  To  a  farmer,  one  span  of  horses  or  mules  and  harness 
or  two  yokes  of  oxen,  and  one  wagon,  with  farming  utensils  not  exceeding  two 
hundred  dollars  in  value.  To  a  mechanic,  the  tools  of  his  trade,  and  material  to  the 
value  of  five  hundred  dollars.  To  a  physician,  his  library  not  exceeding  five 
hundred  dollars  in  value,  horse  and  carriage,  and  instruments,  and  medicines  to 
value  of  two  hundred  dollars.  To  attorneys  and  clergymen  and  other  professional 
men,  their  libraries  not  exceeding  five  hundred  dollars  in  value,  and  ofllce  furni- 
ture, stationery,  and  fuel,  worth  two  hundred  dollars.  To  persons  engaged  in  light- 
ering, one  or  more  lighters  or  scows  and  a  small  boat  not  exceeding  the  aggregate 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS.      ^53 

value  of  two  hundred  and  fifty  dollars.  To  a  teamster,  a  span  of  horses  or  mules, 
harness  and  one  wagon,  cart,  or  dray.  To  a  person  engaged  in  logging,  three  yokes 
of  oxen  and  implements  of  the  value  of  three  hundred  dollars.  Feed  for  animals  for 
six  weeks. 

"WEST  VIRGINIA. —  Actions.  The  old  forms  of  actions  and  writs  are 
preserved,  and  actions  are  begun  in  justices'  courts  by  service  of  summons  returnable 
in  not  less  than  five,  nor  more  than  thirty,  days  ;  in  circuit  courts,  returnable  withm 
ninety  days.  The  assignee  of  a  bond,  note,  or  writing  not  negotiable,  may  sue  in 
his  own  name. 

Attachment  is  allowed  in  actions  for  any  claim  or  debt  on  contract,  or  for 
damages  for  any  wrong,  on  an  affidavit  on  behalf  of  the  plaintiff,  stating  the  nature 
and  amount  of  the  claim,  and,  i.  That  defendant,  or  one  of  defendants,  is  a  foreign 
corporation  or  non-resident.  2.  That  he  has  left,  or  is  about  to  leave,  the  State  with 
intent  to  defraud  creditors.  3.  That  he  so  conceals  himself  that  service  cannot  be 
had  on  him.  4.  That  he  is  removing,  or  is  about  to  remove,  his  property  from  the 
State,  so  that  an  execution,  when  obtained,  will  be  unavailing.  5.  That  he  is  con- 
verting, or  is  about  to  convert,  his  property  into  money  or  securities,  with  intent  to 
defraud  creditors.  6.  That  he  has  assigned  or  disposed  of  his  property,  or  is  about 
to  do  so,  with  intent  to  defraud  creditors.  7.  That  he  has  property  or  rights  of 
action  which  he  conceals.  8.  That  he  fraudulently  contracted  the  debt  or  liability  in 
question.     Plaintiff  must  also  give  securitj^  for  damages  and  costs. 

Arrest.  Defendant  may  be  arrested  and  held  to  bail  on  an  affidavit  stating  the 
nature  and  justice  of  the  claim,  and  the  amount,  and,  i.  That  defendant  has  re- 
moved, or  is  about  to  remove,  his  property  from  the  State,  with  intent  to  defraud 
creditors.  2.  That  he  has  converted,  or  is  about  to  convert,  his  property  into  money 
with  like  intent.  3.  Or  has  assigned,  disposed  of,  or  removed  his  property,  or  is 
about  to  do  so,  with  like  intent.  4.  That  he  has  propert)'  or  rights  in  action  which 
he  fraudulently  conceals.  5.  That  he  fraudulently  contracted  the  debt  or  liability. 
6.  That  he  is  about  to  leave  the  State  permanently,  without  having  paid  plaintiff's 
demand. 

Plaintiff  must  also  give  security  for  damages  and  costs. 

Garnishment.  In  the  writ  of  attachment,  the  plaintiff  may  designate  any 
third  parties  as  having  effects  of  the  defendant  in  their  hands,  and  such  parties  may 
be  summoned  as  garnishees. 

Judgments  bear  interest  at  six  per  cent.;  are  liens  on  real  estate  in  every  county 
from  the  date  of  docketing  in  the  county  where  the  land  is,  and  the  lien  continues  for 
ten  years,  but  the  judgment  must  be  docketed  within  sixty  days  from  the  date  of  ren- 
dition, or  before  any  deed  from  the  debtor  to  a  third  party  is  delivered  for  record.  A 
writ  of  fieri  facias  is  a  lien  on  personal  property  from  the  time  of  delivery  to  the 
sheriff. 

Stay  Law.  In  justices'  courts,  by  giving  bond  with  surety,  stay  of  execution  is 
allowed  as  follows  :  Where  the  judgment,  exclusive  of  interest  and  costs,  does  not 
exceed  fifty  dollars,  two  months  ;  between  fifty  and  one  hundred  dollars,  five  months  ; 
over  one  hundred  dollars,  six  months. 

Exemptions.  A  homestead  of  the  husband  or  parent,  or  of  infant  children  of 
deceased  parents,  to  the  value  of  one  thousand  dollars,  as  against  debts  accrued  after 
date  of  filing  declaration  of  homestead,  and  personal  propertv  to  the  value  of  two 
48 


754 


ABSTRACT  OF   THE    COLLECTION  OF  DEBTS. 


hundred  dollars.  The  working  tools  of  a  mechanic,  artisan,  or  laborer,  to  the  value 
of  fifty  dollars,  provided  the  whole  amount  of  exemptions  does  not  exceed  two  hun- 
dred dollars. 

WISCONSIN. —  Actions.  All  distinctions  have  been  abolished,  and  there  is 
now  but  one  form^  which  must  be  prosecuted  in  the  name  of  the  real  party  in  inter- 
est, except  in  case  of  executors,  administrators,  and  trustees,  and  which  is  begun  by 
the  service  of  a  summons  on  the  defendant. 

Arrest.  Defendant  may  be  arrested,  i.  In  an  action  to  recover  damages  not 
on  contract,  where  the  defendant  is  a  non-resident,  or  is  about  to  remove  from  the 
State,  or  where  the  action  is  for  injury  to  the  person  or  character,  or  for  injury  to,  or 
wrongful  taking,  detaining,  or  converting  property,  or  in  an  action  to  recover  dam- 
ages for  property  taken  under  false  pretences.  2.  In  an  action  for  a  fine  or  penalty, 
or  for  money  received,  or  property  embezzled,  or  fraudulently  misapplied  by  a  public 
officer  or  attorney,  or  an  officer  of  a  corporation  as  such,  or  factor,  agent,  or  broker, 
or  for  misconduct  or  neglect  in  official  or  professional  employment.  3.  In  an  action 
to  recover  property  unjustly  detained,  where  it  is  so  concealed  that  the  sheriff  cannot 
find  the  same. 

An  affidavit  must  be  made  on  the  part  of  the  plaintiff,  stating  the  cause  of  action, 
and  one  of  the  above  causes,  and  security  must  be  given  to  defendant. 

Attachment  is  allowed  on  an  affidavit  that  the  defendant  is  indebted  to  plaint- 
iff, and  stating  the  amount,  which  must  exceed  fifty  dollars,  that  it  is  due  on  con- 
tract or  judgment,  and,  i.  That  defendant  has  absconded,  or  is  about  to  abscond,  or 
is  concealed  to  the  injury  of  his  creditors,  or  to  avoid  service  of  summons.  2.  That 
defendant  has  assigned,  disposed,  or  concealed  his  property,  or  is  about  to  do  so, 
with  intent  to  defraud  creditors.  3.  That  the  defendant  has  removed,  or  is  about  to 
remove,  his  property  from  the  State,  with  intent  to  defraud  creditors.  4.  That  the 
debt  was  fraudulently  contracted.  5.  That  he  is  a  non-resident.  6.  Or  a  foreign 
corporation,  or  if  incorporated  in  the  State,  that  all  the  proper  officers  on  whom  to 
make  service  are  non-residents  or  cannot  be  found.  Or  the  affidavit  shall  state  that 
a  cause  of  action  sounding  in  tort  exists  for  an  amount  exceeding  fifty  dollars,  and 
that  the  defendant  is  not  a  resident  of  the  State,  or  that  his  residence  is  unknown 
and  cannot  be  ascertained,  or  that  defendant  is  a  foreign  corporation.  Attachment 
may  issue  on  a  demand  not  yet  due  in  any  case  mentioned  in  the  first  four  subdivis- 
ions.    Plaintiff  must  also  give  bond. 

Garnishment  is  allowed  on  an  affidavit  on  behalf  of  the  creditor,  that  he  believes 
that  any  third  person  (naming  him)  has  property,  effects,  or  credits  of  defendant,  or 
is  indebted  to  him,  and  that  defendant  has  not  property  sufficient  to  satisfy  his  de- 
mand ;  also  on  execution,  on  a  similar  affidavit. 

Judgment  is  a  lien  on  real  estate  in  the  county  where  rendered  from  the  date  of 
docketing,  and  in  other  counties  from  the  time  of  filing  a  transcript,  and  the  lien 
continues  for  ten  years.  It  bears  interest  at  seven  per  cent.,  except  judgment  for 
foreclosure  which  is  at  rate  specified  in  mortgage. 

Stay  Laws.  In  justices'  courts,  on  giving  bond  with  surety  within  five  days 
after  judgment  was  rendered,  stay  of  execution  is  allowed  as  follows  :  On  sums  not 
exceeding  ten  dollars,  exclusive  of  costs,  one  month  ;  between  ten  and  thirty  dollars, 
two  months ;  between  thirty  and  fifty  dollars,  three  months  ;  over  fifty  dollars,  four 
months 


ABSTRACT  OF   THE   COLLECTION  OF  DEBTS. 


755 


Exemptions.  A  homestead  not  exceeding  forty  acres,  used  for  agriculture,  and  a 
residence,  and  not  included  in  a  town  plat,  or  a  city  or  village,  or  instead,  one-quarter 
of  an  acre  in  a  recorded  town  plat,  city,  or  village.  Also,  i.  Family  Bible.  2.  Family 
pictures,  and  school-books.  3.  Private  library.  4.  Seat  or  pew  in  church.  5.  Right  of 
burial.  6.  Wearing  apparel,  beds,  bedsteads,  and  bedding  kept  and  used  in  the  family, 
stoves  and  appurtenances  put  up  and  used,  cooking  utensils  and  household  furniture 
to  the  value  of  two  hundred  dollars,  one  gun,  rifle,  or  fire-arm  to  the  value  of  fifty 
dollars.  7.  Two  cows,  ten  swine,  one  yoke  of  oxen,  one  horse  or  mule,  or  in  lieu 
thereof,  a  span  of  horses  or  mules,  ten  sheep  and  the  wool  therefrom,  necessary  food 
for  exempt  stock  for  one  year,  provided  or  growing,  or  both,  one  wagon,  cart,  or  dray, 
one  sleigh,  one  plow,  one  drag,  and  other  farm  utensils,  including  tackle  for  the 
teams,  to  the  value  of  two  hundred  dollars.  8.  Provisions  and  fuel  for  the  family  for 
one  year.  9.  Tools  and  implements,  or  stock-in-trade  of  a  mechanic  or  miner,  trader, 
or  other  person,  used  and  kept  for  carrying  on  business,  not  exceeding  two  hundred 
dollars  in  value.  10.  Money  arising  from  insurance  of  exempt  property  destroyed  by 
fire.  II.  Inventions,  for  debts  against  the  inventor.  12.  Sewing-machine.  13.  Sword, 
plate,  books,  or  articles  presented  by  Congress,  or  legislature  of  a  State.  14.  Printing 
materials  and  presses  to  the  value  of  fifteen  hundred  dollars,  but  only  four  hundred 
dollars  is  exempt  from  payment  to  employes.  15.  Earnings  of  a  married  person 
necessary  for  family  support,  for  three  months  previous  to  issuing  process,  not  ex- 
ceeding sixty  dollars  per  month.  16.  Horse,  arms,  and  equipments  of  a  militiaman. 
17.  Books,  maps,  and  other  papers  kept  or  used  for  the  purpose  of  making  abstracts 
of  title  to  land.  The  proceeds  of  policy  of  insurance  on  the  life  of  a  minor,  payable 
to  parents,  are  exempt  as  against  their  creditors,  but  not  against  creditors  of  the 
minor. 

WYOMING. — Actions.  There  is  but  one  form  of  action  at  law,  which  is  com- 
menced by  filing  a  petition  on  which  a  summons  issues. 

Arrest. — An  order  of  arrest  may  be  obtained  on  plaintiff's  giving  security  and 
filing  affidavit  setting  forth  the  nature  and  amount  of  his  claim,  that  it  is  just,  and 
establishing  one  or  more  of  the  following  particulars  :  i.  That  defendant  has  removed 
or  begun  to  remove  property  out  of  jurisdiction  of  court  with  intent  to  defraud  credit- 
ors. 2.  That  he  has  begun  to  convert  property  into  money  to  place  it  beyond  reach 
of  creditors.    3.  That  he  has  property  or  rights  of  action  fraudulently  concealed. 

4.  That  he  has  assigned,  removed,  or  disposed  of  property  to  defraud  creditors. 

5.  That  he  fraudulently  contracted  debt  on  which  suit  is  brought.  6.  That  the  money 
or  thing  for  which  recovery  is  sought  was  lost  by  gambling  or  by  bet  or  wager. 

No  female  can  be  arrested  except  for  willful  injury  to  person,  character,  or  prop- 
erty. 

Attachments  are  granted  in  a  civil  action  for  the  recovery  of  money,  on  plaintiff's 
giving  security  and  filing  an  affidavit  stating  the  nature  and  amount  of  his  claim,  that 
it  is  just,  and  the  existence  of  one  of  the  following  grounds  :  i.  That  defendant  is  a 
foreign  corporation  or  non-resident.  2.  Mas  absconded  with  intent  to  defraud  creditors. 
3.  Has  left  county  of  residence  to  avoid  service  of  summons.  4.  Conceals  himself  so 
that  summons  cannot  be  served  on  him.  5.  Is  about  to  remove  his  property  out  of 
the  jurisdiction  of  the  court,  with  intent  to  defraud  creditors.  6.  Is  about  to  convert 
his  property  into  money  to  place  it  beyond  reach  of  creditors.  7.  Has  property  or 
rights  of  action  concealed.  8.  Has  assigned,  removed,  or  disposed  of  his  property,  or 
is  about  to  do  so,  to  defraud  creditors.  9.  Fraudulently  contracted  debt  sued  on. 


-756       ABSTRACT  OF  THE   COLLECTION  OF  DEBTS. 

Attachment  may  issue  on  claims  not  yet  due,  on  affidavit  showing  existence  of  any 
of  the  above  grounds  from  second  to  ninth  inclusive. 

Garnishment.  When  plaintiff  makes  oath  in  writing  that  he  believes  that  any 
person  or  corporation  named  has  property  of  the  defendant  in  his  possession,  describ- 
ing the  same,  and  the  officer  cannot  get  possession  of  such  property,  such  person  or 
persons  may  be  summoned  as  garnishee. 

Judgment  is  a  lien  on  real  estate  in  the  county  where  entered,  from  the  first  day 
of  the  term  at  which  judgment  is  entered,  except  judgments  by  confession  and  those 
rendered  at  the  term  action  is  commenced,  which  are  binding  only  from  the  day  they 
are  rendered.  Unless  execution  is  taken  out  and  levied  within  one  year,  the  judgment 
ceases  to  be  a  lien  as  against  any  other  judgment  creditor,  and  unless  the  execution 
is  taken  out  within  five  years,  the  judgment  becomes  dormant  and  the  lien  expires. 

Stay  of  Execution  is  allowed  in  justices'  courts  on  filing  bond,  for  thirty  or  sixty 
days,  according  to  amount  involved. 

Exemptions.  Every  householder,  the  head  of  a  family,  is  entitled  to  a  homestead 
not  exceeding  in  value  fifteen  hundred  dollars,  consisting  of  a  house  or  lot  in  a  town 
or  city,  or  a  farm  of  not  more  than  one  hundred  and  sixty  acres  of  land.  The  wearing 
apparel  of  every  person  not  exceeding  in  value  one  hundred  and  fifty  dollars  is  exempt, 
and  the  following  property  owned  by  any  person  the  head  of  a  family,  viz. :  the  family 
Bible,  pictures,  and  school-books  ;  rights  of  burial  ;  furniture,  bedding,  provisions, 
and  such  other  articles  as  the  debtor  may  select,  not  to  exceed  in  all  the  value  of  five 
hundred  dollars.  The  tools,  team,  and  implements,  or  stock  in  trade,  of  a  mechanic, 
miner,  or  other  person,  used  or  kept  for  the  purpose  of  carrying  on  his  trade  or 
business,  not  exceeding  three  hundred  dollars  ;  the  library,  instruments,  or  implements 
of  any  professional  man,  not  exceeding  three  hundred  dollars. 


LIENS  OF  MECHANICS  AND  MATERIAL  MEN.       757 


CHAPTER  XXXVI. 

THE    LIENS   OF   MECHANICS  AND  MATERIAL  MEN  FOR  THEIR 
WAGES  AND  MATERIALS. 

In  nearly  all  our  States  there  are  now  some  provisions  for 
securing  to  mechanics,  and  to  persons  supplying  materials  (who 
are  called  "material  men"),  their  wages  and  pay  for  their  mate- 
rials, by  means  of  liens,  as  they  are  called  in  law.  A  lien  is  a 
hold  upon  or  a  valid  claim  against  property.  This  means  that 
every  mechanic  employed  upon  a  house,  and,  in  most  of  the 
States,  upon  a  vessel,  and  in  some  upon  any  property  whatever, 
as  a  railroad  or  canal,  either  in  the  construction  or  repair  of  it, 
has  a  lien  upon  the  property  on  which  he  has  labored  or  for 
which  he  has  supplied  materials,  for  the  amount  of  his  wages 
and  the  price  of  his  materials.  This  lien  or  claim  he  has  for  a 
certain  time ;  and  during  that  time  he  may  either  sue  for  his 
wages,  and  make  an  attachment  oi  the  property,  or,  in  some 
States,  file  a  petition  with  the  proper  court ;  and  in  either  may 
have  the  property  sold  to  pay  his  wages,  unless  the  owner 
redeems  it. 

The  reason  of  these  precautions  is  obvious  enough.  The 
purpose  of  the  law  is  to  assist  and  protect  the  mechanic,  or 
material  man,  but  not  to  enable  him  to  commit  a  fraud  or  do  an 
injury  to  his  neighbors.  And  it  would  be  an  injury  to  a  man  to 
iCt  him  buy  a  house  and  pay  full  price  for  it,  and  then  tell  him 
that  the  mechanics  who  built  it  had  a  lien  (which  is  much  the 
same  in  effect  as  a  mortgage)  upon  the  house,  without  his  know- 
ing anything  about  it.  And  it  would  be  an  injury  to  an  owner, 
who  had  contracted  with  the  master-workman  to  repair  or 
change  his  house  at  great  expense,  to  settle  with  this  master 
workman  m  due  time,  and  pay  him  the  full  amount  of  his  bill, 
without  any  notice  to  the  owner  that  he  was  under  an  obliga- 
tion to  pay  again  for  all  the  labor  spent  upon  his  house,  or  let 
tie  house  cro  on  execution. 


Of  all  the      laws  for  the  recovery  of  debts,  and  the  enforce- 


758      LIENS  OF  MECHANICS  AND  MATERIAL  MEN. 

ment  of  the  liens  of  mechanics  referred  to  in  this  and  the  pre- 
ceding chapter,  the  provisions  now  in  force  are  quite  recent. 
Only  of  late  years  has  imprisonment  for  debt  been  greatly  miti- 
gated or  removed,  and  the  trustee  or  garnishee  process  made 
what  it  now  is,  exceedingly  convenient  and  useful.  The  home- 
stead law  and  the  lien  law,  though  now  so  widely  spread,  are  a 
modern  invention,  or,  at  least,  of  modern  introduction.  One 
effect  of  this  recent  origin  is,  that  important  practical  questions 
still  exist  as  to  their  construction,  application,  and  effect,  which 
only  time  can  solve. 

I  give,  annexed  to  this  chapter,  an  abstract  of  the  Laws  of 
all  the  States  relating  to  Mechanic  Liens. 

In  this  chapter  nothing  more  has  been  attempted  than  to 
indicate  distinctly  to  the  mechanic  what  rights  he  may  possess 
and  what  securities  he  may  hold,  and  how  he  may  lose  the 
rights  and  securities  he  possesses,  and  to  the  owner  or  buyer 
what  liabilities  he  may  incur,  unless  the  one  and  the  other  take 
the  proper  course  which  the  law  has  provided  for  their  safety. 

The  forms  to  be  used  under  the  lien  laws  are  not  usually 
prescribed  by  statute.  Those  given  below  are  in  use  in  some 
of  our  principal  cities ;  and  the  same,  in  substance,  would  be 
suitable  anywhere,  with  such  modifications  as  may  be  necessary 
to  adapt  them  to  the  provisions  of  the  law  of  the  State  where 
they  are  to  be  used. 

(263.) 
A  Notice  under  Mechanic's  Lien  Law. 

( To  be  filed  ivith  the  Clerk  of  the  County  or  other  officer  designated  by  statute^ 

To  Esquire, 

Clerk  of  the  City  and  County  of 
Sir, 

Please  to  take  Notice,  That  I,  residing-  at  No.  Street, 

in  have  a  claim  against  amounting  to  the  sum  of 

due  to  me,  and  that  the  claim  is  made  for  and  on  account  of  (Jiere  state  the  work 
or  materials')  and  that  such  work  was  done  in  pursuance  of  (Jiere  describe  the  con- 
tract) which  building  is  owned  by  situated  in  the  ward,  of 
the  city  of  on  the  side  of  Street,  and  is  known  as 
No.  The  following  is  a  diagram  of  said  premises  {or,  tlie  said  premises 
being  described  as  follows). 


RELEASE  AND  DISCHARGE  OF  A  MECHAXICS  LIEN.    759 

And  that  I  have  and  claim  a  lien  upon  said  house  or  building,  and  the 
ai^purtenances  and  lot  on  which  the  same  shall  stand,  pursuant  to  the  pro- 
\isions  of  an  act  of  the  Legislature  of  the  State  of  to  secure  the 

payment  of  mechanics,  laborers,  and  persons  furnishing  materials  towards 
the  erection,  altering,  or  repairing  of  buildings. 

Dated,  this  day  of  18 


{Signature^ 


County  of 

'  ss. 
City  of 


{The  name  of  the paj-ty  claiming  the  /zV;/)  being  duly  sworn,  say',  that 

he  is  the  claimant  mentioned  in  the  foregoing  notice  of  lien,  tiiat  he 

has  read  the  said  notice  and  knows  the  contents  thereof,  and  that  the  same 

is  true  to  his  own  knowledge,  except  as  to  the  matters  therein  stated  on 

information  and  belief,  and  as  to  those  matters  he  believes  it  to  be  true. 

Sworn  to  before  me,  this  day  of  18 

{Signature'). 

(264.) 

A  Bill  of  Particulars  of  Mechanic's  Claim. 

(  To  be  served  on  ozvner,  and  in  some  States  to  be  recorded  with  t/ie  Notice i) 
A  Bill  of  Particulars  Of  the  amount  claimed  to  be  due  from 
for  and  on  account  of  {work  or  materials)  and  that  such  work  was  done  {or 
materials  flemished)  in   pursuance  of  {state  the  contract  or  order)  which 
building  is  owned  by  situated  in  the  ward  of  the  city  of 

on  the  side  of  Street,  and  is  known  as  No. 


of  said  street. 


{Date.) 


{Signattcre  of  Claimant.) 
To    {name  of  owner.) 


(265.) 
A  Release  and  Discharge  of  a  Mechanic's  Lien. 

I  do  Hereby  Certify,  That  a  certain  mechanic's  lien,  filed  in  the  office 
of  the  clerk  of  the  county  of  the  day  of 

one  tliousand  eight  hundred  and  at  o'clock  in 

the  noon,  in  favor  of  claimant  against  the  building  and 

lot,  situate  side  of  street,  and  knowa 

as  No,  in  said  street,  whereof  is  owner,  and 

is  contractor,  is  discharged. 

{Signature.') 

ss.     On  the  day  of  one 

thousand  eight  hundred  and  before  me  came  who  is 

known  to  me  to  be  the  individual  described  in,  and  who  executed  the  above 
certificate,  and  ackr.owledged  that  he  executed  the  same. 


760      LIENS  OF  MECHANICS  AND  MA  TERIAL  MEN. 

(266.) 

Release  and  Discharge  of  a  Mechanics'  Lien— another 

Form. 

"WTiereas,  We,  the  subscribers,  have  erected  and  furnished  materials  fo> 
erecting  on  lot  or  piece  of  ground  situate 

And  have  agreed  to  releas,e  all  liens  which  we,  or  any  or  either  of  us  have,  or 
might  have,  on  the  said  by  reason  of  materials  furnished,  or  work 

performed,  for  erecting  the  same.  Now  these  presents  witness,  that  we,  the 
subscribers,  for  and  in  consideration  of  the  premises,  and  of  the  sum  of  one 
dollar,  to  each  of  us  at  or  before  the  sealing  and  delivery  hereof  by  the  said 
well  and  truly  paid,  the  receipt  whereof  we  do  hereby  acknowl- 
edge, have  remised,  released,  and  forever  quit-claimed,  and  by  these  presents 
do  remise,  release,  and  forever  quit-claim  unto  the  said  and  to 

his  heirs  and  assigns,  all  and  all  manner  of  liens,  claims,  and  demands  what- 
soever, which  we,  or  any  or  either  of  us,  now  have,  or  might  or  could  have, 
on  or  against  the  said  and  premises,  for  work  done,  or  for  mate- 

rials furnished,  for  erecting  and  constructing  the  said  building,  or  otherwise 
howsoever.     So  that  he,  the  said  and  his  heirs  and  assigns,  shall 

and  may  have,  hold,  and  enjoy,  the  said  and  premises,  freed 

and  discharged  from  all  liens,  claims,  and  demands  whatsoever,  which  we, 
or  any  or  either  of  us  now  have,  or  might  or  could  have,  on  or  against  the 
same,  if  these  presents  had  not  been  made. 

In  Witness  Whereof,  We  have  hereunto  set  our  hands  and  seals  the 
day  of  the  date  written  opposite  our  respective  signatures. 
\Date)  {Witnesses  at  signing)  (Sigttattcres  of  Claimants.) 


ABSTRACT  OF  THE  LAWS  OF  ALL  THE  STATES 
RELATLNG  TO  MECHANICS'  LIENS. 

ALABAMA.  —  Every  mechanic  or  other  person  who  performs  any  work 
or  labor,  or  furnishes  any  materials  or  fixtures,  erection,  or  improvement  on 
land,  or  does  any  repairing  on  the  same  by  virtue  of  a  contract,  has  a  lien 
on  such  building  or  improvement,  and  i:pon  the  land  on  which  it  is  situated, 
to  the  extent  of  one  acre.  The  original  contractor  within  six  months,  and 
any  laborer  within  thirty  days,  and  any  other  person  within  four  months, 
must  file  with  the  judge  of  probate  a  verified  statement  of  the  account  and 
description  of  the  property,  and  name  of  owner,  and  action  must  be  brought 
to  enforce  the  lien  within  six  months  frorn  such  filing.  Mechanics  also  have 
a  lien  on  articles  made  or  repaired  by  them. 


ARIZONA.  —  Every  person  performing  labor  upon,  or  furnishing  mate- 
rials for  the  construction,  alteration,  or  repair  of  any  building  or  other 
structure  or  improvement,  may  have  a  lien  thereon,  and  on  the  land  neces- 
sary for  the  convenient  use  and  occupation  of  the  same.  The  claimant  must, 
within  ninety  days  after  the  completion  of  the  labor  or  furnishing  materials, 
file  in  the  office  of  the  county  recorder  where  the  property  is  situated  the 
contract,  or,  if  it  be  verbal,  a  copy  under  oath  of  the  bill  of  particulars,  and 
furnish  a  duplicate  to  the  debtor.  Liens  are  to  be  foreclosed  by  suit  within 
six  months. 


ARKANSAS.  —  A  mechanic  or  other  person  performing  any  work  or 
labor,  or  furnishing  any  material  or  fixture,  erection,  or  improvement  on 
land,  or  doing  any  repairing  on  the  same  by  virtue  of  a  contract,  has  a  lien 
on  such  building  or  improvement,  and  upon  the  land  upon  which  it  is  situ- 
ated not  exceeding  two  acres.  He  must  file  with  the  clerk  of  the  circuit 
court  of  the  county  where  the  land  is,  within  ninety  days  after  ceasing  to 
labor  or  to  furnish  materials,  a  just  and  true  account  of  the  claim,  and 
description  of  the  property,  verified  by  affidavit,  and  suit  must  be  begun 
within  nine  months  thereafter.  Sub-contractors  must  file  claim  within 
sixty  days,  and  sue  within  six  months. 


CALIFORNIA.  —  Every  person  performing  labor  upon,  or  furnishing 
materials  to  be  used  in  the  construction,  repairing,  or  altering  any  structure, 
has  a  lien  on  the  same  for  his  services.  The  land,  or  the  owner's  interest 
therein,  is  also  subject  to  the  lien,  and  every  original  contractor  within  sixty 
days  from  the  time  of  completing  his  contract,  and  every  other  person  within 
thirty  days,  must  file  with  the  county  recorder  a  claim,  stating  his  demand, 

(761) 


762      LIENS   OF  MECHANICS  AND   MATERIAL   MEN. 

the  owner  of  the  property,  employer,  and  the  property  on  which  the  lien  is 
claimed,  and  suit  must  be  begun  within  ninety  days  from  the  date  of  filing 
the  claim. 


COLORADO.  —  Any  person  performing  work,  or  furnishing  materials  on 
any  building  or  other  structure,  or  on  a  mine,  by  virtue  of  a  contract,  has  a 
lien  on  the  same,  and  he  must,  within  sixty  days  if  an  original  contractor, 
or  forty  days  if  a  sub-contractor,  file  a  sworn  statement  in  the  county 
recorder's  office  containing  a  notice  that  he  claims  such  lien,  a  description  of 
the  property,  and  an  abstract  of  the  indebtedness,  and  the  action  to  enforce 
the  lien  must  be  brought  within  six  months  after  filing  such  notice.  A  lien 
is  allowed  on  personal  property  to  the  person  making,  altering,  or  repairing 
the  same,  and  if  it  is  not  paid  in  ninety  days  after  the  work  is  done,  it  may 
be  appraised  and  sold. 


CONNECTICUT.  —  A  lien  is  allowed  on  every  building  or  railroad,  in 
the  construction  or  repairing  of  which  any  person  has  a  claim  for  labor  or 
materials  exceeding  twenty-five  dollars.  The  lien  is  dissolved  unless  within 
sixty  days  after  ceasing  to  labor  or  furnish  materials,  such  person  files  with 
the  clerk  of  the  town  where  the  building  is,  or  in  the  case  of  a  railroad,  with 
the  Secretary  of  State,  a  description  of  the  premises,  the  amount  of  the  lien, 
and  the  date  of  the  commencement  of  the  claim,  the  same  being  subscribed 
and  sworn  to.  Foreclosure  proceedings  must  be  commenced  within  two 
years. 


DELAWARE.  —  A  lien  is  allowed  to  any  person  furnishing  materials  or 
labor,  or  both,  on  any  building  to  the  amount  of  twenty-five  dollars.  The 
original  contractor  must  file  a  statement  not  sooner  than  ninety  or  later 
than  one  hundred  and  twenty  days  after  the  completion  of  the  building,  and 
other  persons  within  ninety  days  after  ceasing  to  labor  or  furnish  materials. 
The  statement  must  contain  the  names  of  the  party  claimant,  and  owner, 
and  contractor,  the  amount  claimed,  and  a  bill  of  particulars  of  the  work 
done,  the  time  when  the  work  was  done,  the  locality  of  the  building,  and  a 
description  thereof. 


DISTRICT  OF  COLUMBIA.  —  Every  contractor,  material  man,  journey- 
man, or  laborer,  has  a  lien  on  building  and  land  for  work,  materials  fur- 
nished, or  machinery  or  other  thing  placed  in  the  building  as  as  a  fixture. 
Notice  must  be  filed  in  the  clerk's  office  of  the  supreme  court  during  the 
construction  or  within  three  months  after  completion  of  buildings  or  repairs, 
of  the  intention  to  claim  a  lien,  and  the  amount  and  the  lien  must  be 
enforced  by  proceedings  in  equity  within  one  year  after  filing  notice,  or 
completion  of  building.  Mechanics  have  liens  on  articles  of  personal 
property  for  labor  and  materials  furnished,  to  be  enforced  by  sale  after  six 
months. 


ABSTRACT  OF  MECHANICS'  LIENS.  763 

FLORIDA.  —  Mechanics  and  all  other  persons  performing  labor  or  fur- 
nishing mateiials  or  machinery  in  the  construction  or  repair  of  any  building, 
mill,  etc.,  have  a  lien  on  such  building  and  the  land  on  which  it  stands, 
provided  lien  be  filed  in  office  of  clerk  of  circuit  court  within  six  months 
after  demand  for  payment. 

Persons  of  any  craft  performing  labor  upon  or  with  any  machinery, 
apparatus,  fixtures,  or  any  other  thing,  have  a  lien  thereon  for  ninety  days 
after  failure  or  refusal  to  pay  for  such  labor.  These  liens  are  enforced  by 
attachment.  Persons  loading  or  unloading  vessels  have  a  lien  on  the 
vessels.  Persons  cutting  or  rafting  logs  or  timbers  have  a  lien  on  the 
same. 

Persons  performing  any  labor  on  or  for  a  railroad  have  a  lien  on  the  rail- 
road and  its  property,  which  may  be  enforced  by  bill  in  equity. 


GEORGIA.  —  All  mechanics  and  persons  doing  any  work  on  a  building, 
or  furnishing  any  materials  or  machinery,  have  a  lien  on  the  same  ;  but 
there  must  be  a  substantial  compliance  with  the  contract,  and  the  claim  must 
be  recorded  within  thirty  days  after  the  work  is  done,  or  within  three 
months  after  materials  or  machinery  are  furnished,  in  the  office  of  the  clerk 
of  the  superior  court  for  the  county  where  the  property  is  situated,  contain- 
ing a  description  of  the  property  and  of  the  demand.  Mechanics  and 
laborers  also  have  a  lien  on  personal  property  for  work  done  in  manufactur- 
ing or  repairing  the  same,  which  is  enforced  by  retaining  the  property,  but 
is  lost  on  delivering  it  up  unless  lien  is  recorded  in  clerk's  office  in  ten  days. 
Action  to  enforce  a  lien  must  be  begun  within  twelve  months  after  the  claim 
is  due. 


IDAHO.  —  Liens  are  given  for  labor  or  materials  furnished  and  used  in 
the  construction,  alteration,  or  repair  of  any  building,  wharf,  bridge,  ditch, 
flume,  tunnel,  fence,  machinery,  road,  aqueduct  to  create  hydraulic  power, 
or  any  other  structure,  or  for  labor  on  a  mining  claim. 

Every  original  contractor  within  sixty  days  after  the  completion  of  his 
contract,  and  every  other  person  claiming  a  lien  within  thirty  days  after  the 
completion  of  the  building  or  the  repairs  on  the  same,  must  file  with  the 
recorder  of  the  county  a  claim  containing  a  statement  under  oath  of  his  de- 
mand, name  of  owner  of  property,  if  known,  of  his  employer  or  person  to 
whom  materials  were  furnished,  statement  of  terms,  and  conditions  of  con- 
tract and  description  of  property.  Suit  to  foreclose  lien  must  be  commenced 
within  ninety  days  after  filing.  A  lien  for  labor  on  farm  may  be  had  by 
filing  claim  within  thirty  days  after  ceasing  to  labor.  It  must  be  enforced 
within  ninety  days. 


ILLINOIS.  —  An  original  contractor  who  furnishes  labor  or  materials,  or 
services  as  architect  or  superintendent  for  a  building,  has  a  lien  on  the 
building  and  lot. 


764     LIENS   OF  MECHANICS  AND  MATERIAL  MEN. 

Sub-contractors  and  workmen  are  entitled  to  a  lien  to  the  extent  of  bal- 
ance due  the  original  contractor,  but  any  claim  for  labor  is  a  lien  for  twenty 
days  from  date  of  last  work  done  to  the  extent  of  ten  per  cent,  of  propor- 
tionate value  of  contract  then  completed,  provided  notice  be  given  within 
the  twenty  days.  Under  express  contracts  there  is  no  lien  if  the  time  for 
its  completion  exceeds  three  years,  or  the  time  for  payment  more  than  one 
year  from  completion,  and  under  implied  contracts  work  must  be  performed 
or  materials  furnished  within  one  year. 

Original  contractor  must  file  lien  within  four  months  after  last  payment 
is  due,  and  suit  to  enforce  same  must  be  commenced  within  two  years,  or 
twenty  days  after  notice  from  any  person  interested. 

Sub-contractor  must  give  notice  of  claim  for  lien  within  forty  days  from 
completion  of  sub-contract  or  from  time  payment  was  due  to  him,  and  may 
enforce  the  same  within  three  months  from  completion  of  sub-contract  or 
work.  Contractors,  material-men,  and  employes  on  railroads  have  lien  on 
all  property  of  the  company,  which  must  be  enforced  within  six  months. 


INDIANA.  —  Mechanics  and  all  other  persons  performing  labor  or  fur- 
nishing materials  or  machinery  on  any  structure  or  building  whatsoever, 
have  a  lien  on  the  same.  To  secure  the  lien  a  notice  of  the  claim  must  be 
filed  in  the  record  office  of  the  county  where  the  building  is,  within  sixty 
days  after  completion  of  the  building  or  repairs.  Suit  may  be  begun  to  en- 
force the  same  within  one  year.  A  mechanic  or  tradesman  has  a  lien  on  any 
personal  property  for  work  done.  Mechanics  and  laborers  may  have  a  lien 
for  labor  and  materials  furnished  to  a  railroad  on  all  the  property  and  fran- 
chises of  the  road. 


IOWA.  —  Persons  doing  work  or  furnishing  materials  on  any  building 
or  improvment  have  a  lien  on  the  buildings  and  land.  There  must  be  filed 
in  clerk's  office  of  the  district  court  of  the  county,  within  ninety  days  after 
the  work  is  done  or  materials  furnished,  by  principal  contractors,  or  within 
thirty  days  by  sub-contractors,  a  statement  under  oath  of  the  demand  due, 
the  time  when  labor  was  performed  or  materials  furnished,  and  description 
of  property  charged.  Statement  filed  later  is  good  except  as  against  subse- 
quent purchaser  in  good  faith  without  notice  before  lien  filed. 

To  prevent  payment  to  principal  contractor,  notice  of  filing  sub  con- 
tractor's lien  must  be  given  to  owner  within  thirty  days. 


KANSAS.  —  Any  mechanic  or  other  person  who  shall  furnish,  under 
contract,  any  labor  or  materials  for  erecting,  altering,  or  repairing  any 
building  or  appurtenance,  or  any  machinery  or  fixtures  in  the  same,  or  plant 
or  grow  any  trees,  vines,  hedges,  etc.,  or  shall  build  a  stone  or  other  fence, 
shall  have  a  lien  on  the  buildings,  land,  and  appurtenances.  Sub-con- 
tractors must  file  a  statement  of  their  account  with  the  clerk  of  the  District 
Court  for  the  county  within  sixty  days  after  the  completion  of  the  buildings, 


ABSTRACT  OF  MECHAXICS'  LIENS.  -0$ 

etc.,  or  the  furnishing  the  labor  or  materials,  and  serve  notice  of  filing  on 
owner  of  the  land.  Contractors  must  file  such  an  account  within  four 
months,  and  all  actions  to  enforce  liens  must  be  begun  within  one  year  after 
completion  of  the  work. 


KENTUCKY. — Any  person  who  performs  any  labor  or  furnishes  any 
material,  or  fixtures,  or  machinery  in  the  erection,  alteration,  or  repair  of 
any  structure,  or  who  makes  any  excavation  or  improvement  in  any  manner 
on  real  estate,  by  a  contract  with  or  written  consent  of  the  owner,  has  a  lien 
on  the  building  and  land  for  twelve  months  from  the  completion  of  the 
work;  and  A^nthin  sixty  days  after  ceasing  to  labor  or  furnish  materials,  he 
must  file  in  the  office  of  the  county  clerk  of  the  county  where  the  building  is, 
a  statement  of  the  amotmt  due,  a  description  of  the  property,  and  the  name 
of  the  owner,  and  also  whether  the  work  was  done  or  the  materials  furnished 
by  contract  with  the  owner  or  with  a  contractor  or  sub-contractor. 

Sub-contractors  and  laborers  may  acquire  a  lien  to  the  extent  of  balance 
due  the  principal  contractor  by  giving  notice  to  employer  that  they  claim  a 
lien,  and  filing  a  statement  as  above. 


LOUISIANA.  —  Liens  in  this  State  are  known  as  privileges.  Architects, 
Contractors,  and  all  persons  who  are  employed  in  constructing  or  repairing 
any  building,  and  all  persons  who  have  supplied  the  owner,  agent,  or  sub- 
contractor with  materials  to  be  used  on  any  building,  have  a  lien  and 
privilege  on  the  buildings  and  lot  of  land  not  exceeding  one  acre.  The 
privilege  must  be  recorded  with  the  register  of  pri\nleges  in  the  parish  where 
the  property  is,  together  with  the  act  containing  the  bargain  made,  or  a 
statement  of  the  account. 


MAINE.  —  Any  person  performing  or  furnishing  labor  or  materials  in 
erecting,  altering,  or  repairing  any  house,  building,  or  appurtenance  by 
virtue  of  a  contract  with,  or  by  consent  of  the  o^vner,  has  a  lien  on  the  build- 
ing and  land  on  which  it  stands.  If  the  labor  or  materials  are  not  furnished 
by  contract  with  the  owner,  he  may  prevent  the  lien  for  such  labor  or  mate- 
rials not  yet  furnished  from  attaching,  by  giving  written  notice  that  he  will 
not  be  responsible  for  the  same.  The  lien  is  dissolved,  unless,  within  thirty 
days  after  ceasing  to  labor,  or  to  furnish  materials,  the  claimant  shall  file, 
in  the  office  of  the  town  clerk  where  the  building  is,  a  true  statement  of  the 
account,  a  description  of  the  property,  and  the  owner's  name,  and  suit  must 
be  begun  within  ninety  days  after  the  last  labor  was  performed  or  materials 
furnished. 


MARYLAND. —  Every  building,  machine,  wharf,  or  bridge  erected,  or 
repaired,  or  improved  to  the  extent  of  one-fourth  of  its  value,  is  subject  to 
a  lien  for  the  payment  of  all  debts  contracted,  or  work  done  or  materials 


^(^Q,     LIENS   OF  MECHANICS  AND   MATERIAL   MEN. 

furnished  for  or  about  the  same.  If  the  contract  be  made  with  any  one  but 
the  owner,  the  claimant  must,  within  sixty  days  after  furnishing  the  work  or 
materials,  give  notice  in  writing  to  the  owner.  Claimant  must  within  six 
months  file  a  statement  of  his  demand  in  the  office  of  the  clerk  of  the  Cir- 
cuit Court  for  the  county  where  the  property  is,  or  in  Balt'more  in  the 
Superior  Court.  The  lien  continues  for  five  years.  Similar  liens  are  given 
for  labor  or  materials  furnished  for  building  or  equipping  vessels,  and  are 
in  force  for  two  years. 


MASSACHUSETTS.  —  Any  person  to  whom  a  debt  is  due  for  labor 
performed  or  furnished,  or  for  materials  furnished  and  actually  used  in  the 
erection,  alteration,  or  repair  of  any  building  or  structure  upon  real  estate, 
by  virtue  of  an  agreement  with,  or  by  consent  of  the  owner  thereof,  or  any 
person  having  authority  from  the  owner,  has  a  lien  on  the  property  and  land 
for  his  charges.  There  can  be  no  lien  for  materials  furnished  to  a  person 
other  than  the  owner,  unless  notice  of  intention  to  claim  lien  is  given  to  the 
owner  before  furnishing  the  materials,  and  the  owner  may  prevent  the  lien 
in  such  case  from  attaching  by  giving  written  notice  that  he  will  not  be 
responsible.  Any  one  having  an  interest  in  the  property  claimed  may  release 
the  same  by  giving  a  sufficient  bond.  Liens  are  dissolved,  unless  the  claim- 
ant, within  thirty  days  after  ceasing  to  work,  files  in  the  registry  of  deeds 
for  the  county  or  district  where  the  property  is  situated  a  true  statement  of 
the  account,  under  oath,  together  with  a  description  of  the  property  and  the 
owner's  name;  and  suit  to  enforce  the  lien  must  be  begun  within  ninety  days 
after  ceasing  to  work  or  furnishing  materials. 


MICHIGAN.  —  Every  person  who,  under  any  express  or  implied  contract 
with  the  owner  or  lessee  of  any  interest  in  real  estate,  or  with  a  contractor, 
performs  labor  or  furnishes  materials  for  building,  altering,  repairing,  oi 
ornamenting  any  building,  machinery,  wharf,  or  other  structure,  has  a  lien 
thereon  and  on  the  interest  of  the  owner  or  lessee  of  the  land  to  the  extent 
of  a  quarter  section,  or  in  a  city  or  village  of  the  lot  or  lots  on  which 
improvements  were  made. 

Any  person  furnishing  materials  to  contractor  or  sub-contractor  must 
within  ten  days  furnish  statement  to  owner  or  his  agent. 

If  notice  of  intended  lien  be  filed  in  registry  at  commencement  of 
furnishing  labor  or  materials,  and  copy  served  on  owner  and  contractor,  all 
payments  made  within  time  for  filing  lien  will  be  at  owner's  risk. 

If  the  estate  is  a  homestead  the  contract  must  be  signed  by  the  owner 
and  his  wife.  A  notice,  signed  and  verified,  setting  forth  the  time  of  com- 
mencing to  furnish  the  labor,  etc.,  the  amount  due  or  to  become  due,  and  a 
description  of  the  property,  must  be  filed  in  the  registry  of  deeds  within 
sixty  days  after  furnishing  last  of  labor  or  materials  and  within  ten  days 
after  filing  must  be  served  on  the  owner  or  lessee,  or  in  his  absence  on  agent 
in  charge,  and  in  absence  of  both,  by  posting  on  the  premises.  The  lien 
must  be  enforced  by  suit  in  chancery  within  twenty  days  after  filing  notice, 
or  finishing  last  of  labor,  etc. 


ABSTRACT  OF  MECHANICS'  LIEXS.  ySy 

MINNESOTA. — Any  person  performing  labor  or  furnishing  material  for 
construction  or  repair  of  any  water-craft,  building,  wharf,  fence,  structure, 
railway,  or  telegraph  line,  etc.,  by  virtue  of  a  contract  with  the  owner,  agent, 
contractor  or  sub-contractor,  may  have  a  lien  thereon  and  on  the  land  not 
exceeding  forty  acres  without  a  city  or  village  or  one  acre  within  such  city 
or  village.  Labor  or  material  furnished  with  knowledge  of  owner  held 
to  be  at  his  instance  unless  he  g^ves  notice  to  the  contrary  within  five 
days.  Claimant  must  file  verified  statement  in  writing  of  amount  due,  that 
same  is  for  labor  or  materials  furnished  and  date  of  first  and  last  items 
of  account,  description  of  property  to  be  charged,  and  owner's  name  and 
notice  of  intention  to  claim  lien,  within  ninety  days  from  last  item  in  ofiice 
of  register  of  deeds  of  county  where  premises  are  situated  —  or  in  case 
of  water-craft,  railroad,  telegraph  or  telephone  line  in  office  of  Secretary  of 
State.  Lien  must  be  enforced  by  suit  within  one  year  from  date  of  lest 
item. 


MISSISSIPPI. — Every  building,  bridge,  machinery,  or  fixtures  for 
manufacturing  purposes,  railroad,  or  water-craft,  and  ever}'  paling  or 
enclosure  is  liable  for  the  pajinent  of  anj^  debt  contracted  and  owing  for 
labor  performed  or  materials  furnished  about  the  erection,  alteration,  or 
repair  of  the  same,  and  the  debt  is  a  lien  on  the  building  or  structure  and 
the  land  on  which  it  is,  not  to  exceed  one  acre  if  in  the  county.  The  lien 
takes  effect  from  the  time  of  filing  the  contract  in  the  office  of  the  chancery 
clerk  for  the  county  where  the  land  is,  or  from  the  commencement  of  suit  to 
enforce  it,  and  such  suit  must  be  beg^n  within  six  months  after  the  money 
claimed  is  due  and  payable.  Sub-contractors,  or  employes,  or  furnishing 
men  of  a  contractor,  are  not  entitled  to  a  lien.  Land  of  third  person  bound 
only  when  he  gives  written  consent  to  improvement. 


MlSSOUm. — Every  person  performing  any  work  or  furnishing  any 
materials,  fixtures,  engines,  boilers,  or  machinery  for  any  building,  erec- 
tion, or  improvement  on  land,  or  for  repairing  the  same,  has  a  lien  on  the 
building  and  land  belonging  to  the  owner  on  which  the  building  is,  to  the 
extent  of  one  acre,  or  if  in  a  city,  town,  or  village,  on  the  lot  and  building. 
Every  original  contractor  within  six  months,  every  journeyman  and  day- 
laborer  within  sixty  days,  and  ever}'  other  person  within  four  months,  must 
file  with  the  clerk  of  the  circuit  court  for  the  county  where  the  propert}'  is  a 
true  account  of  his  demand,  a  description  of  the  property,  and  the  owner's 
name,  and  action  to  enforce  the  lien  must  be  begun  within  ninety  days 
after  filing  such  account.  Sub-contractor  or  laborer  must  give  owner  ten 
days'  notice  before  filing  lien. 


MONTANA. — Every  person  performing  labor  or  furnishing  materials, 
machinery,  or  fixtures  for  any  building,  erection,  bridge,  flume,  canal, 
ditch,  mining  claim,  quartz  lode,  city  or  town  lot,  ranch,  railroad,  telegraph, 


768     LIENS  OF  MECHANICS  AND  MATERIAL   MEN 

telephone,  electric  light  line,  gas  or  water  pipe  line,  or  other  improvements, 
may  have  a  lien  thereon,  by  filing  within  forty-five  daj^s  with  the  recorder 
of  county  where  property  is  situated,  a  statement  under  oath  of  amount  due, 
and  description  of  property.     Suit  must  be  commenced  within  one  year. 


NEBRASKA. — AH  persons  performing  labor  or  furnishing  materials, 
or  machinery  for  erecting,  repairing,  equipping,  or  removing  any  building 
or  appurtenance  have  a  lien  to  secure  payment  for  the  same,  on  the  building 
or  appurtenance  and  lot  on  which  it  stands.  The  claimant  must  make  an 
account  in  writing,  under  oath,  and  within  four  months  from  the  time  of 
doing  the  work  or  furnishing  the  materials  must  file  the  same  in  the  office 
of  the  clerk  of  the  county  where  the  work  was  done,  and  the  lien  continues 
for  two  years  from  date  of  first  item.  Sub-contractor  must  file  claim  within 
sixty-days. 


NEVADA. — Every  person  performing  labor  tipon,  or  furnishing  mate- 
rials of  the  value  of  five  dollars  in  constructing  or  repairing  any  building 
or  superstructure,  or  performing  labor  on  any  railroad,  tramway,  toll-road, 
canal,  water  ditch,  flume,  aqueduct,  reservoir,  mine,  or  tunnel,  or  in  the 
improvement  of  any  building  lot  in  a  city  or  town,  has  a  lien  on  the  same  for 
his  work,  labor,  or  materials,  if  done  at  the  instance  of  the  owner  or  his 
agent.  The  land  occupied  by  the  building,  structure,  or  improvement  is 
subject  to  the  lien.  Original  contractors  within  sixty  days,  and  all  other 
persons  within  thirty  days,  after  last  work  done  or  materials  furnished,  must 
file  in  the  record  office  for  the  county  where  the  land  is  a  statement  of  the 
demand,  the  owner's  name,  and  description  of  the  property.  Suit  must 
be  begun  within  six  months  after  filing  the  claim. 


NEW  HAMPSHIRE. — Any  person  who,  by  himself  or  others,  performs 
labor  or  furnishes  materials  to  the  value  of  fifteen  dollars  or  more,  for  erect- 
ing, altering,  or  repairing  a  house,  or  other  building  or  appurtenance,  by 
virtue  of  a  contract  with  the  owner,  may  have  a  lien  on  the  same,  such  lien 
to  be  secured  by  attachment,  and  to  continue  ninety  days.  A  sub-con- 
tractor may  have  a  similar  lien  by  giving  notice  in  writing  to  the  owner  or 
person  having  charge  of  the  property  of  his  intention  to  claim  a  lien,  and 
furnishing  to  the  owner  once  in  thirty  days  an  account  of  labor  performed 
or  materials  furnished.  Lumberers  and  railroad  sub-contractors  have  a  like 
lien,  on  giving  similar  notice  and  account. 


NEW  JERSEY. — Every  building  constructed,  erected,  or  repaired,  and 
machinery  or  fixtures  put  into  any  building,  are  liable  for  the  payment  of 
all  debts  contracted  and  owing  to  any  person  for  labor  performed  or  mate- 
rials furnished  for  the  erection  or  repair  of  such  building,  machinery,  or 
fixtures.     But  if  the  work  was  done  by  contract,  the  building  is  liable  to  the 


ABSTRACT  OF  MECHANICS'  LIENS.  769 

contractor  alone,  provided  the  contract,  or  a  copy,  is  filed  in  the  county- 
clerk's  office  before  any  work  was  done  or  materials  furnished,  provided 
that  on  payment  of  each  installment  releases  be  made  by  all  who  have  done 
work  or  fmrnished  materials,  and  an  affidavit  be  made  that  no  other  persons 
have  a  lien  for  labor  or  materials.  The  claimant  must,  within  one  year 
after  performing  the  labor  or  furnishing  the  materials,  file  in  the  office  of 
the  county  clerk  a  statement  containing  a  description  of  the  building,  the 
owner's  name,  and  the  name  of  the  person  contracting  the  debt,  the  time  of 
beginning  the  work,  and  a  bill  of  particulars,  and  a  suit  must  be  brought 
within  the  year  after  date  of  last  item,  and  diligently  prosecuted  within  three 
years. 


NEW  MEXICO. — Any  person  furnishing  labor  or  materials  for  the 
erection  or  repair  of  a  building  has  a  lien  thereon  and  on  the  land  on  which 
it  stands.  Original  contractor  must  file  in  office  of  county  clerk  a  statement 
of  account,  under  oath,  and  description  of  property,  within  ninety  days  after 
completion  of  contract.  Sub-contractors  must  file  similar  statement  within 
sixty  days  after  work  done  or  material  furnished.  Suit  must  be  brought 
within  one  year  from  time  of  payment  falling  due. 


NEW  YORK. — Any  person  who,  with  the  consent  of  the  owner,  or  his 
agent,  or  any  contractor  or  sub-contractor,  performs  services  or  furnishes 
materials  for  building,  or  altering  any  structure  or  appurtenance  to  any 
house  or  building  lot,  including  fences,  etc.,  or  equipping  any  structure  with 
gas  or  electric  light  fixtures,  may  have  a  lien  on  the  premises  to  secure  the 
payment  of  their  claims.  A  notice  of  this  lien,  including  specification  of  the 
claim  and  copy  of  the  contract,  if  there  is  one,  verified  by  the  claimant  or 
his  agent,  must  be  filed  within  ninety  days  after  ceasing  to  work  or  furnish 
materials,  and  suit  begun  within  a  year  after  such  time. 


NORTH  CAROLINA.— Every  building  built,  rebuilt,  repaired,  or  im- 
proved, together  with  the  lot  on  which  the  building  is,  and  every  lot,  farm, 
or  vessel,  is  subject  to  a  lien  for  the  payment  of  all  debts  contracted  for 
work  or  materials  furnished  about  the  same.  Notice  of  the  lien  must  be 
filed  in  the  office  of  the  clerk  of  the  superior  court  of  the  county  wnthin 
twelve  months  after  the  labor  is  completed  or  materials  furnished,  specifpng 
the  labor  or  materials  furnished  and  the  time.  Suit  must  be  brought  within 
six  months  after  filing  lien.  Sub-contractors,  laborers,  and  material  men  can 
take  a  lien  by  notifpng  owner  of  property  before  he  has  settled  with  the 
contractor,  and  filing  notice  as  above.  Agricultural  laborers  and  persons 
engaged  in  loading  vessels  also  have  liens.  Mechanics  and  artisans  have  a 
lien  on  personal  property  made  or  repaired  by  them,  and  they  may  retain 
possession  of  the  property.  If  their  charges  are  not  paid  within  thirty  days 
if  the  value  of  the  article  does  not  exceed  fifty  dollars,  or  ninety  days  if  the 
49 


7/0 


LIENS  OF  MECHANICS  AND  MATERIAL  MEN. 


value  is  over  fifty  dollars,  they  may  proceed  to  sell  the  property  at  auction, 
after  giving  two  weeks'  notice. 


NORTH  DAKOTA. — Every  person  performing  labor  or  furnishing 
materials,  machinery,  or  fixtures,  for  any  building,  erection,  or  other  im- 
provement upon  land,  by  virtue  of  any  contract  with  the  owner,  his  agent, 
trustee,  contractor,  or  sub-contractor,  may  have  a  lien  on  such  building, 
erection,  or  improvement,  and  the  land  on  which  it  is  situated.  Notice  of 
lien  must  be  filed  by  sub-contractor  within  sixty  days  and  by  contractor/ 
within  ninety  days  after  labor  is  performed  or  materials  furnished. 


OHIO. — Any  person  performing  labor  or  furnishing  machinery  or  mate- 
rial for  constructing  or  repairing  any  vessel,  or  any  building,  bridge,  or  other 
structure,  or  digging  or  drilling  any  gas,  oil,  or  other  well,  or  mining  coal, 
by  virtue  of  contract  with  the  owner  or  agent,  may  have  a  lien  on  structure 
and  interest  of  owner  in  land.  He  must  file  an  itemized  and  sworn  account 
of  amount  and  value  of  work  or  materials,  with  credits  if  any,  and  copy  of 
contract  if  in  writing  in  recorder's  office  of  the  county  within  four  months 
after  doing  work,  etc. 

Action  to  enforce  lien  must  be  brought  within  six  years. 

Persons  performing  common  or  mechanical  labor,  or  furnishing  supplies 
to  any  railroad,  turnpike,  canal,  or  public  structure,  have  a  first  lien  thereon. 
A  sworn  statement  mtist  be  filed  within  thirty  days  with  the  recorder  of 
counties  where  work  was  done  or  materials  furnished. 

Claims  for  manual  labor  have  prior  lien  on  real  property  of  employer  as 
against  attachment,  mortgages,  and  assignments  in  certain  cases,  provided 
an  itemized  statement  of  claim  is  filed  with  the  recorder. 


OKLAHOMA.  —  Any  person  performing  labor  or  furnishing  materials, 
machinery,  or  fixtures  for  any  building,  erection,  or  other  improvement  upon 
land,  under  contract  with  the  owner  or  his  agent,  trustee,  contractor,  or  sub- 
contractor, may  have  lien  on  the  building,  etc.,  and  land  by  filing  in  the 
office  of  the  district  court  a  verified  statement  of  his  account  wnthin  sixty 
days  from  date  of  performing  such  work,  or  furnishing  materials. 

Owner  cannot  be  sued  by  contractor  until  expiration  of  sixty  days  after 
completion  of  building,  etc. 


OREGON.  —  Any  person  who,  by  virtue  of  a  contract  with  the  owner  or 
his  agent,  performs  any  labor,  or  furnishes  any  materials,  engines,  or 
machinery  for  the  construction  or  repair  of  any  building  or  structure,  has  a 
lien  on  the  building  and  lot  on  which  it  stands  for  his  pay.  An  original  con- 
tractor^ust  file  in  the  office  of  the  county  clerk,  within  sixty  days  after  the 
completion  of  the  building  or  repairs,  a  notice  of  his  intention  to  claim  a 
lien,  specifying  the  amount  due  and  the  property.     A  laborer  or  sub-con- 


ABSTRACT  OF  MECHANICS'  LIENS. 


771 


tractor  must  file  notice  within  thirty  days.  The  lien  will  not  be  binding  for 
more  than  six  months  after  such  filing,  unless  suit  is  brought.  Mechanics 
and  artisans  have  a  lien  on  personal  property  made  or  repaired  by  them, 
and  if  their  charges  are  not  paid  in  three  months,  they  may  sell  the 
property. 


PENNSYLVANIA.  —  In  nearly  all  the  counties  persons  furnishing 
labor  or  materials  in  the  erection  of  any  building  have  a  lien  thereon,  and  on 
the  land,  which  takes  precedence  of  any  incumbrance  or  lien  attaching  after 
commencement  of  building,  and,  if  for  labor,  precedence  of  advance  money 
mortgage  previously  created,  except  to  assessed  value  of  land.  Claim  must 
be  filed  in  office  of  court  of  common  pleas  within  six  months  after  labor  per- 
formed or  materials  furnished,  and  must  specify  name  of  claimant,  and  of 
owner,  or  name  of  contractor,  architect,  or  builder,  if  contract  was  made  by 
him,  amount  claimed,  nature  of  work  done  or  materials  furnished,  time 
when  furnished,  and  locality  and  description  of  property.  Lien  continues 
for  five  years.  Sub-contractors  have  a  similar  lien,  unless  waived  in  writing. 
There  is  also  a  similar  lien  on  a  building  for  repairs  and  alterations,  which 
attaches  from  time  of  filing.  In  certain  mining  counties  mechanics'  lien 
applies  to  engines,  pumps,  and  other  improvements  on  leasehold  estates. 


HHODE  ISLAND.  —  Every  building  or  other  improvement  erected  or 
repaired,  by  contract  with  or  consent  of  the  owner,  is  subject  to  a  lien  for  all 
work  done  or  materials  furnished  in  the  construction  or  repair  of  the  same. 
Persons  employed  by  a  contractor  must  give  owner  written  notice  of  inten- 
tion to  claim  lien  within  thirty  days  after  work  is  commenced.  Persons  fur- 
nishing materials  must  give  notice  to  owner,  and  record  same  in  town  clerk's 
office  within  sixty  days  after  materials  are  placed  on  land. 

To  enforce  lien,  the  claim,  including  an  account  and  description  of 
property,  must  be  filed  in  the  office  of  the  town  clerk  of  town  where  land  is 
situated  within  four  months  after  default  in  any  payment  if  work  is  done  by 
written  contract,  or  within  six  months  after  commencement  of  work  under 
verbal  contract.  A  petition  in  equity  must  be  filed  in  the  clerk's  office  of  the 
supreme  court  at  the  next  term  after  the  filing  of  the  claim. 


SOUTH  CAROLINA.  — Any  person  to  whom  a  debt  is  due  for  labor 
performed  or  materials  furnished  and  actually  used  in  the  erection,  altera- 
tion, or  repair  of  any  building  or  structure  on  real  estate,  by  virtue  of  a  con- 
tract with  or  consent  of  the  owner  or  his  agent,  has  a  lien  on  the  buildings 
and  land  for  his  pay.  The  lien  for  materials  furnished  does  not  attach 
unless,  before  furnishing  the  same,  the  claimant  gives  notice  to  the  owner, 
who  is  not  the  purchaser,  that  he  intends  to  claim  a  lien.  If  the  owner  is  not 
the  contracting  party,  he  may  prevent  any  lien  from  attaching  by  giving 
written  notice  that  he  will  not  be  responsible  for  the  debts  of  the  contractor. 


772      LIENS   OF  MECHANICS  AND   MATERIAL   MEN. 

The  claimant,  within  ninety  days  after  ceasing  to  labor  or  furnish  materials, 
must  file  in  the  office  of  the  clerk  of  the  court  of  common  pleas  a  statement 
of  his  account,  with  a  description  of  the  property,  and  the  owner's  name, 
and  record  it  within  forty  days  thereafter  in  the  office  of  register  of  mesne 
conveyances.  Suit  must  be  begun  within  six  months  after  ceasing  to 
labor. 


SOUTH  DAKOTA.  —  Every  person  doing  labor  upon,  or  furnishing 
materials,  machinery,  or  fixtures  for  any  building  or  other  improvement  on 
land,  by  virtue  of  any  contract  with  the  owner,  or  his  agent,  trustee,  con- 
tractor, or  sub-contractor,  may  have  a  lien  on  the  land  and  the  buildings, 
etc.  Notice  of  lien  must  be  filed  by  sub-contractor  within  sixty  days,  and 
by  contractor  within  ninety  days  after  performing  labor  or  furnishing 
materials. 


TENNESSEE.  —  There  is  a  lien  on  any  lot  of  land  upon  which  a  house 
has  been  built  or  repaired,  or  fixtures  or  machinery  furnished  or  erected,  or 
improvement  made  by  special  contract  with  the  owner  or  his  agent  in  favor 
of  all  persons  doing  any  work  or  furnishing  any  materials  on  or  about  the 
same.  The  lien  includes  the  buildings  on  the  land,  and  continues  for  one 
year  after  completion  of  the  work.  Sub-contractors  and  workmen  must,  at 
the  time  of  beginning  to  work,  give  notice  to  the  owner  of  their  intention  to 
claim  a  lien,  or  they  may,  within  thirty  days  after  building  is  completed,  or 
their  contracts  expire,  notify  in  writing  the  owner  that  lien  is  claimed,  and 
such  lien  shall  thereupon  have  precedence  over  all  other  liens  for  ninety 
days,  providing  statement  be  filed  with  county  registrar. 


TEXAS.  —  Master-builders,  and  mechanics  of  all  kinds,  contracting  to 
erect  buildings  of  any  description,  have  a  lien  in  the  nature  of  a  mortgage 
on  the  buildings  and  land,  provided  the  contract  is  in  writing,  or  if  verbal, 
stated  on  oath  and  copy  rendered  to  debtor,  and  recorded  in  the  office  of  the 
clerk  of  the  county  where  the  building  is,  within  four  months  after  debt  has 
accrued.  All  persons  doing  any  work  or  furnishing  any  materials  on  any 
such  building  may,  within  thirty  days  after  indebtedness  accrues,  if  their 
work  or  materials  are  not  paid  for,  deliver  to  the  owner  a  copy  of  their 
account,  and  he  is  then  authorized  to  retain  enough  to  pay  them  out  of  the 
amount  due  the  contractor. 


UTAH.  —  Any  person  who,  by  virtue  of  a  contract  with  the  owner,  fur- 
nishes labor  or  materials  in  the  construction  or  improvement  of  any  building 
or  structure,  or  in  working  a  mine,  has  a  lien  thereon,  provided  he  files  with 
the  county  recorder,  within  sixty  days  after  the  completion  of  his  contract 
if  an  original  contractor,  or  forty  days  after  the  completion  of  the  building, 


ABSTRACT  OF  MECHANICS'  LIENS.  yj-i, 

etc.,  It  a  sub-contractor,  a  claim,  under  oath,  containing  a  statement  of  his 
demand  after  deducting  all  credits,  name  of  owner  if  known,  and  employer, 
the  terms  of  the  contract,  and  description  of  property.  Suit  for  foreclosure 
must  be  commenced  within  one  year  after  filing. 


"VERMONT.  —  When  any  contract  is  made,  in  writing  or  otherwise,  for 
the  erection,  repair,  or  alteration  of  any  building,  or  for  furnishing  any 
materials  about  the  same,  the  person  proceeding  under  the  contract  has  a 
lien  on  the  house  and  land,  which  continues  for  three  months  after  payment 
of  the  claim  is  due,  provided  the  claimant  file  in  the  clerk's  office  of  the 
town  where  the  building  is,  a  memorandum  signed  by  him  showing  his 
claim,  and  commences  an  action  to  enforce  the  same  within  said  three 
month.s.  The  property  on  which  lien  is  claimed  is  to  be  attached  within 
live  months  after  judgment,  and  copy  of  record  filed  in  town  clerk's  office, 
whereupon  lien  becomes  one  in  nature  of  mortgage,  and  is  foreclosed  as 
such. 


VIRGINIA.  —  All  persons  performing  labor,  or  furnishing  materials  for 
the  construction  or  improvement  of  buildings  or  other  structures,  or  repair 
thereon,  if  ordered  by  owner  or  his  agent,  have  a  lien  thereon,  and  on  so 
m-jch  land  as  is  necessary  to  the  convenient  use  thereof.  A  general  or  a  sub- 
contractor, or  material  man  must,  within  thirty  days  after  completion  of 
building,  or  furnishing  materials,  file  in  the  county  clerk's  office  (or,  if  the 
property  be  in  the  city  of  Richmond,  in  the  clerk's  office  of  the  chancery 
court),  a  sworn  statement  of  account,  ^snth  a  description  of  the  property, 
and  claim  a  lien  thereon.  Sub-contractors,  or  material  men,  must  also, 
within  thirty  days,  notify  in  writing  the  owner  of  the  property  or  his  agent, 
and  the  owner  will  be  liable  to  the  sub-contractor  or  material  man  for  so 
much  of  his  claim  as  does  not  exceed  the  amount  due  by  the  owner  to  the 
general  contractor  at  the  time  notice  is  given.  Sub-contractor  may,  before 
performing  labor  or  furnishing  materials  to  general  contractor,  give  owner 
written  notice  of  intention  to  claim  lien,  stating  probable  amount,  and 
within  thirty  days  after  structure  is  completed  give  to  owner  and  contractor 
a  verified  statement  of  account,  and  owner  shall  thereupon  be  personally 
liable  to  extent  of  amount  then  due  contractor.  Suit  to  enforce  lien  must 
be  brought  within  six  months. 


"WASHINGTON.  —  Mechanics  and  material  men  may  have  liens  on 
buildings  and  lands  en  which  they  stand,  by  filing  notice  thereof,  within 
ninety  days  of  the  completion  of  the  work  or  furnishing  materials,  \v\\h  the 
coimty  auditor,  stating  amount  due  above  all  set-offs.  Suit  must  be 
brought  within  eight  months  after  such  filing. 

Lumbermen  may  have  a  similar  lien  on  logs  and  timber,  and  farm 


774     LIRA'S  OF  MECHANICS  AND   MATERIAL  MEN. 

laborers  on  crops,  by  filing  notice  of  lien  in  county  auditor's  office  within 
thirty  days  after  debt  accrued,  and  bringing  suit  thereon  within  one  year 
thereafter. 


WEST  VIRGINIA.  —  Every  person  who  shall  perform  any  work  or 
labor,  or  furnish  any  materials  in  the  construction,  alteration,  or  repair  of 
any  house,  mill,  or  other  building,  or  appurtenance,  bridge,  or  other 
structure,  by  virtue  of  a  contract  with  the  owner  or  his  agent,  has  a  lien  on 
the  buildings  and  land  fcr  his  pay.  He  must,  within  sixty  days  after 
ceasing  to  labor  or  furnish  materials,  file  with  the  clerk  of  the  court  for  the 
county  where  the  property  is  a  true  account  of  the  amount  due,  a  descrip- 
tion of  the  property,  and  the  owner's  name.  Sub-contractors  and  workmen 
must,  within  thirty  five  days  after  their  employment  expired,  or  materials 
were  furnished,  or  within  ten  days  after  being  notified  by  the  owner  so  to 
do.  give  to  the  owner  an  itemized  account  of  the  amount  due  them,  and 
notice  that  a  lien  is  claimed  therefor.  Such  account  need  not  be  filed 
unless  demanded,  if  sub-contractor,  etc.,  before  commencing  work  notify 
owner  that  a  lien  will  be  claimed.  The  aggregate  of  such  liens  shall  not 
exceed  the  amount  due  to  the  original  contractor  at  the  time  such  notice  is 
given,  provided  contract  is  recorded  in  county  clerk's  office.  Suit  to  enforce 
the  lien  must  be  begun  within  six  months. 


"WISCONSIN.  —  Every  person  furnishing  labor,  materials,  or  machinery, 
in  the  erection,  construction,  repair,  protection,  or  removal  of  any  building, 
bridge,  water  lot,  wharf,  well,  or  fountain,  fence,  sidewalk,  etc.,  may  hav'^ 
a  lien  thereon  to  the  extent  of  forty  acres,  or,  within  the  limits  of  an  incor- 
porated city  or  village,  one-quarter  of  an  acre.  A  claim  for  lien  must 
be  filed  with  the  clerk  of  the  circuit  court  within  six  months  from  the  dabs 
of  the  last  charge,  and  action  brought  within  one  year  from  such  date, 
unless,  within  thirty  days  before  the  expiration  of  the  year,  the  time  is 
extended  for  another  year,  by  annexing  to  the  claim  on  file  an  affidavit 
showing  the  interest  of  the  claimant  in  the  property  by  virtue  of  such  lien. 

Sub-contractors  have  a  similar  lien  to  the  extent  of  amount  due  from 
owner  to  contractor,  if  notice  is  given  to  owner,  and  claim  is  filed  within 
sixty  days  after  the  last  charge. 


WYOMING.  —  Any  person  performing  labor  or  furnishing  materials, 
fixtures,  or  machinery  for  any  building,  erection,  or  improvement  on  land, 
or  for  repairing  the  same,  may  have  a  lien  on  the  land  to  the  extent  of  one 
acre,  or,  if  in  a  city,  town,  or  village,  on  the  lot  on  which  the  building 
is  situated.  Every  original  contractor  within  ninety  days,  and  every  sub- 
contractor, journeyman,  or  laborer  within  fifty  days,  after  indebtedness 
accrues,  must  file  with  the  register  of  deeds  of  the  county  an  account,  under 
oath,  of  the  amount  due  after  allowing  for  credits,  a  description  of  the 


ABSTRACT  OF  MECHANICS'  LIENS.  -7- 

property,  and  name  of  owner  and  contractor,  if  known;  but  original  con- 
tractors cannot  file  lien  until  sixty  days  after  completion  of  contract. 
Persons  other  than  original  contractors  must,  ten  days  before  filing  lien, 
give  ^v^itten  notice  of  the  claim  and  amount  thereof.  Proceedings  to  fore- 
close lien  must  be  begpun  within  six  months. 


776 


THE  DISPOSAL  OF  PROPERTY  BY  WILL. 

CHAPTER  XXXVII. 
OF  THE  DISPOSAL   OF  PROPERTY  BY  WILL. 


SECTION  I. 

OF    WILLS. 

Few  persons  are  aware  how  very  difficult  it  is  to  make  an 
unobjectionable  will.  There  is  nothing  one  can  do,  in  reference 
to  which  it  is  more  certain  that  he  needs  legal  advice,  and  that 
of  a  trustworthy  kind.  Eminent  lawyers,  not  practised  in  this 
peculiar  branch  of  the  law,  have  often  failed  in  making  their 
own  wills,  both  in  England  and  in  this  country.  And  there  are 
seldom  blank  forms  for  wills  printed  and  sold,  as  there  are  for 
<leeds  and  leases.  Nevertheless,  it  may  happen  that  one  is  called 
upon  to  make  his  own  will,  or  a  will  for  his  neighbor,  under 
circumstances  which  do  not  admit  of  delay ;  or  he  may  have 
some  interest  in  the  will  of  a  deceased  person,  and  questions 
may  have  arisen,  which  some  knowledge  of  legal  principles  will 
answer.  We  shall  try  to  state  here  what  may  be  of  use  in  such 
cases  ;  and  shall  append  a  form  for  a  will. 

Any  person  of  sound  mind  and  proper  age  may  make  a  will. 
A  married  woman  cannot,  unless  in  relation  to  trust  property, 
whereof  the  trust  or  marriage  settlement  reserves  to  her  this 
power  ;  or  the  statute  law  of  her  State  gives  it,  as  is  the  case  now 
in  many  States. 

One  must  be  of  full  age  in  order  to  devise  real  estate.  But 
in  most  of  our  States  minors  may  bequeath  personal  property ; 
and  a  frequent  limitation  of  the  age  for  such  bequest  is  eighteen 
years  for  males,  and  sixteen  years  for  females. 

The  testator  should  say  distinctly,  in  the  beginning  of  the 
instrument,  that  it  is  his  last  zvill.  If  he  has  made  other  wills, 
it  is  usual  and  well  to  say,  "  hereby  revoking  all  former  wills  ; " 
but  the  law  gives  effect  to  a  last  will  always. 

It  should  close  with  the  words  of  attestation  :  "  In  witness 
Vv'hereof,  I  have  hereunto  signed  and  sealed  this  instrument,  and 
published  and   declared  the  same  as  and  for  my  last  will,  at 


WILLS.  yyy 

on  this  day  of  ."     Then 

should  follow  the  signature  and  seal ;  for  this  latter,  although 
not  always  required  by  law,  is  usually  and  properly  affixed. 

The  witnessing  part  is  very  material.  The  requirements  in 
the  different  States  are  not  precisely  alike  ;  but  they  are  all  in- 
tended to  secure  such  attestation  as  will  leave  the  fact  of  the 
execution  of  the  will,  and  its  publication  as  such,  beyond  doubt. 
In  a  very  few  States,  it  is  enough  if  the  signature  be  proved  by 
credible  witnesses,  although  there  be  no  witnesses  who  sub- 
scribed their  names  to  the  will.  In  many,  two  subscribing  v/it- 
nesses  are  enough.  It  is  so  in  the  provinces  of  the  Dominion 
of  Canada,  generally.  But  in  some  States  it  is  necessary,  ajid 
in  all  I  rccoinmeiid,  that  the  testator  should  ask  tJircc  disinter- 
ested persons  to  witness  this  will  ;  and  should  then,  in  their 
presence,  sign  and  seal  it,  and  declare  it  to  be  his  will ;  and 
they  should  then,  each  in  the  presence  of  the  testator  and  of  the 
other  witnesses,  sign  his  name  as  witness.  See  the  Abstracts 
at  the  close  of  this  chapter. 

Each  should  see  the  execution  which  he  says  he  witnesses  ; 
and  the  signing  by  the  witnesses  should  all  be  seen  by  the  testa- 
tor ;  but  the  law  is  satisfied  if  the  thing  is  done  near  the  testa- 
tor, and  where  he  can  see  if  he  chooses  to  look.  If  the  testator 
is  too  feeble  to  write  his  name,  let  him  make  his  mark  ;  and  for 
this  purpose  any  mark  is  enough,  although  across  is  commonly 
made.  So,  if  a  witness  cannot  write  his  name,  he  may  make 
his  mark  ;  but  this  should  be  avoided  if  possible. 

Over  the  witnesses'  names  should  be  written  their  attesta- 
tion ;  and  any  alteration  in  the  will  should  be  noticed.  If  the 
attestation  be  in  the  following  words,  it  Vv'ill  be  safe  in  any  part 
of  this  country  : 

"At  on  this  day  of  the  above- 

named  signed  and  sealed  this  instrument,  and  pub- 

lished and  declared  the  same  as  and  for  his  last  will  ;  and  we,  in 
his  presence,  and  at  his  request,  and  in  the  presence  of  each 
other,  have  hereunto  subscribed  our  names  as  witnesses." 

Witnesses  should  be  selected  with  care,  where  that  is  possi- 
ble ;  for  if  any  question  arises  about  the  testator's  sanity,  or 
anything  of  the  kind,  their  evidence  is  first  to  be  taken,  and  is 


778  THE  DISPOSAL  OF  PROPERTY  BY  WILL. 

very  important.  But  any  persons  competent  to  do  ordinary 
acts  of  business  may  be  witnesses.  Nor  do  the  usual  qualifica- 
tions for  business  apply.  Thus,  married  women  and  minors  may 
be  witnesses  of  wills.  But  no  person  should  be  called  upon  to 
witness  a  will  who  is  a  legatee,  or  an  executor,  or  otherwise 
interested  in  the  will.  If  such  a  person  were  a  witness,  it  might 
not  avoid  the  will ;  but  a  legatee  would  lose  or  be  obliged  to 
renounce  his  legacy  ;  and,  generally,  it  might  lead  to  unintended 
results.  What  was  said  in  relation  to  deeds,  of  witnesses  remem- 
bering, etc.,  or  proof  of  handwriting  in  case  of  their  death  or 
absence,  is  true  also  of  wills. 

As  to  the  body  of  the  will,  the  testator  must  express  his  wishes 
as  clearly  and  accurately  as  possible ;  and,  unless  he  has  good 
legal  advice,  he  should  make  the  disposition  of  his  property  as 
simple  as  possible. 

The  word  "  bequeath  "  applies,  properly,  to  personal  estate 
only  ;  the  word  "devise,"  to  real  estate  only.  It  is  safe  enough 
to  begin,  "  I  give,  bequeath,  and  devise  my  estate  and  property, 
as  follows  :  that  is  to  say," — and  then  go  on  and  tell  what 
shall  be  done  with  this  and  that  piece  of  property,  or  sum  of 
money. 

Words  of  inheritance  should  be  added  to  any  devise  of  land 
(if  not  intended  for  the  life  of  the  devisee  only),  as  was  said  in 
reference  to  deeds  ;  although  they  are  not  required  in  wills  so 
peremptorily  as  in  deeds.  The  words  of  inheritance  are, — To 
A  B  "and  his  heirs." 

If  it  is  intended,  as  usually  is  the  case,  that  the  will  should 
apply  to  all  the  real  estate  possessed  by  the  testator  at  the  time 
of  his  death,  although  purchased  after  the  will  is  made,  there 
should  be  a  clause  expressing  this  intention. 

If  children  are  not  provided  for  in  a  will,  the  law  sometimes 
presumes  they  were  forgotten  ;  and  it  gives  to  any  such  child 
the  same  share  as  if  there  were  no  will,  unless  the  omission  is 
explained  in  the  will,  or  by  evidence,  and  shown  to  have  been 
intentional.  If  the  child  were  provided  for  in  the  lifetime  of  the 
father,  the  law,  generally,  would  not  presume  that  the  child  was 
forgotten  ;  it  is  best,  however,  to  guard  against  any  question  of 
the  kind,  by  saying  that  the  omission  to  give  to  the  child  any* 
thing  is  intentional. 


WILLS.  yyc) 

A  testator  should  always  name  his  executors  ;  but  the  will 
is  perfectly  good  without  any  executor  being  named,  for  the 
court  of  probate  will  appoint  an  "administrator  with  the  will 
annexed." 

If  the  testator  desires  that  his  executor  or  trustee  should  not 
give  bonds,  he  should  say  so  distinctly  in  his  will. 

Nuncupative  wills  are  wills  made  by  word  of  mouth. 

Olographic  wills  are  wills  written  entirely  by  the  testator's 
hand. 

In  the  provinces  of  the  Dominion  of  Canada,  generally  the 
laws  as  to  the  construction,  effect,  and  execution  of  a  will  are 
the  same  as  in  the  United  States  :  the  principal  difference  being 
that,  in  the  Province  of  Quebec,  the  French  rule  prevails,  and 
an  olograph  will  is  valid  without  witnesses. 

SECTION  II. 

CODICILS. 

A  CODICIL  is  a  little  additional  will.  That  is,  it  is  a  testa- 
mentary disposition,  not  revoking  the  former  will,  but  varying 
it  in  some  way,  or  making  changes  in  it.  There  can  be  but  one 
will,  and  that  the  last ;  but  there  may  be  any  number  of  codi- 
cils, all  valid.  The  changes  made  by  a  codicil  in  a  will,  or  in 
former  codicils,  should  be  very  distinctly  stated  ;  and  some  words 
like  these  should  be  used  :  "  I  hereby  expressly  confirm  mv 
former  will,  dated  excepting  so  far  as  the  disposi- 

tion of  my  property  is  changed  by  this  codicil."  And  the  cod- 
icil should  be  called,  at  the  beginning  and  end,  a  codicil,  and 
executed  and  witnessed  in  the  same  manner  as  a  will. 

If  a  codicil  gives  one  a  legacy,  who  has  already  one  by  the 
will,  the  codicil  should  state  whether  it  gives  the  second  legacy 
instead  of  the  first,  or  in  addition  to  it.  And  if  advances  are 
made  to  a  child  during  life,  there  should  be  an  indorsement  on 
the  will  (but  a  statement  in  the  will  or  codicil  would  be  better), 
stating  whether  these  advances  are  to  be  charged  to  him,  and  in 
what  way,  whether  with  interest,  etc. 


ySo  THE  DISPOSAL  OF  PROPERTY  BY  WILL. 

SECTION  III. 

REVOCATIOX  OF    WILLS. 

The  law  concerning  the  revocation  of  a  will  is  quife  nice 
and  technical.  A  codicil,  we  have  seen,  does  not  revoke,  and  a 
new  will  does.  So  might  tearing  off  the  name  ;  but  then  the 
question  might  come,  who  tore  it  off?  It  is  better  to  leave  nei- 
ther this  nor  any  other  question  :  and  therefore  to  destroy  a 
Avill  which  it  is  intended  to  revoke.  If  the  will  is  out  of  the 
testator's  reach  and  power,  and  so  cannot  be  destroyed,  it  would 
be  best  to  make  a  new  will,  revoking  the  old  one  ;  which  any  tes- 
tator can  always  do. 

A  will  is  revoked  by  the  operation  of  law,  if  the  testator 
afterwards  marry  and  have  a  child.  If  the  testator,  after  this, 
intends  that  his  will  shall  take  effect,  he  should  expressly  con- 
firm it ;  and  the  correct  way  to  do  this  would  be  by  making  a 
new  will.  If  he  leaves  anything  to  his  wife,  and  intends  that 
she  should  have  it  instead  of  dower,  or  of  the  additional  rights 
which  recent  statutes  in  some  of  the  States  have  given  her,  he 
should  say  so.  And  then  she  will  not  have  both,  but  may 
choose  between  the  provision  of  the  law  and  that  of  the  will, 
taking  whichever  she  prefers,  and  leaving  the  other. 

For  the  rights  of  the  wife  or  widow  in  the  several  States,  I 
refer  back  to  the  abstract  of  the  statutes  of  the  several  States, 
in  Chapter  V. 

Annexed  to  this  chapter  is  an  abstract  of  the  laws  of  all  the 
States  relating  to  wills. 

It  is  impossible  to  do  more  than  to  give  such  forms- and 
rules  as  will  be  applicable  to  all  wills,  and  enable  any  person  to 
draw  a  simple  will  with  safety.  No  one  can  express  accurately 
provisions  for  trust  estates,  remainders,  executory  devices,  etc., 
without  knowing  the  law  on  these  subjects, — and  this  is  an 
extensive  and  difificult  department  of  the  law.  All  that  is 
necessary,  and  may  be  relied  upon  as  generally  sufficient,  is  as 
follows : 


FORMS  OF  WILLS.  78 1 

(267.) 
Form  of  a  Will. 

I,  of  {place  and  occupation),  m;:ke  this  my  last  will.     I  give, 

devise,  bequeath  my  est.ite  and  property,  real  and  personal,  as  follows,  that 
is  to  say : 

Then  follow  all  the  provisions  and  disposition  of  property 
which  the  testator  intends,  stated  fully,  plainly,  and  as  accu- 
rately as  possible,  paying  due  regard  to  the  rules  and  prin- 
ciples laid  down  in  the  chapter  of  this  book  on  this  subject. 
And  if  these  provisions  are  carefully  presented  in  distinct  and 
intelligible  language,  the  courts  will  generally  supply  whatever 
of  technicality  is  wanting.  Then  follows,  first,  the  appoint- 
ment of  an  executor,  and  then  the  execution,  and  finally  the 
declaration  of  the  witnesses,  thus  : 

I  appoint  (na7nc,  residence,  and  occ7cpatio)i)  executor  (or  exectitors  if  more 
than  one  be  desired)  of  this  my  will. 

In  witness  whereof,  I  have  signed  and  sealed  and  published  and  declared 
this  instrument  as  my  will,  at  {place),  on  {dale). 

(Signattcre.)     {Seal.) 

The  said  at  said   {place),  on   said  {day),  signed  and  sealed  thi^ 

instrument,   and  published  and  declared  the  same  as  and  for  his  last  will  in  our 
presence.      And  we,  at  his  request,  and  in  his  presence,  and  in  the  presence  ol 
each  other,  have  hereunto  written  our  names  as  subscribing  witnesses. 
{Here  follow  tlie  names  of  three  witnesses.) 

A  codicil  should  be  written  thus : 

I,  of  {place  and  occupation),  do  make  this  my  codicil,  hereby 

confirmins:  my  last  will  made  on  t!ie  {date  of  the  7i'ill),  and  all  my  former 
codicils  {if  there  be  any),  so  far  as  this  codicil  is  consistent  therewith  ;  and 
do  hereby — 

Then  follows  whatever  disposition  the  testator  chooses  to 
make,  stating  and  describing  it  as  he  would  if  it  were  a  will. 
and  executing  it,  and  having  it  attested  in  the  same  manner  as 
if  it  were  a  will,  excepting  that,  instead  of  calling  it  a  will, 
wherever  that  word  occurs,  he  says,  "codicil"  instead  of  "will." 
If  he  gives  in  his  will  or  codicil  a  legacy  to  a  woman,  it  is 
generally  best  to  add  "this  legacy  (or  bequest)  to  be  for  her 
sole  and  separate  use,  independent  of  her  husband,  at  all  times. 


782  THE  DISPOSAL  OF  PROPERTY  BY  WILL. 

(268.) 
Copy  of  a  fuller  Form  of  a  Will. 

Be  it  Remembered,  That  I,  of  the  city  of  in  th« 

State  of  Esquire,  do  make  this  my  last  will  and  testament,  in 

manner  following.     That  is  to  say, — • 

I  order  and  direct  that  all  my  just  debts  shall  be  paid  with  convenient 
speed 

I  give  unto  Mr.  of  said  city,  merchant,  the  amount  of  moneys 

due  and  owing  from  him  to  me,  according  to  the  tenor  and  effect  of  fouf 
promissory  notes  signed  by  him,  viz:  one  dated  October  i6,  1819,  for  ninety- 
six  hundred  and  eighty  dollars  ;  one  dated  August  9,  1822,  for  five  thousand 
dollars ;  another  dated  August  9,  1822,  for  forty-five  hundred  and  fifty-eight 
-^^^  dollars  ;  and  another  dated  August  15,  1822,  for  fifty-six  hundred  dollars  : 
and  I  order  said  four  notes  to  be  cancelled. 

To  the  wife  of  said  I  give  an  annuity  of  six  hundred 

dollars,  to  be  paid  her  in  two  equal  and  half-yearly  payments  of  three 
hundred  dollars  each. 

It  is  my  will,  and  I  order  and  direct  that  a  trust  fund  of  ten  thousand 
dollars  shall  be  raised  out  of  my  estate  and  invested  at  interest,  the  income 
and  produce  of  which  trust  fund  I  give  unto  of 

single  woman,  to  be  paid  to  her  half-yearly,  during  her  natural  life.  And  at 
the  decease  of  the  said  the  principal  sum  or  trust  fund  shall  be 

paid  to  and  among  such  person  and  persons  in  such  shares  and  portions  as 
she,  the  said  by  any  writing  by  her  signed  in  the  presence  of  two 

or  more  credible  witnesses,  shall  give,  direct,  and  appoint.  And  in  default 
of  such  appointment,  then  said  trust  fund,  or  principal  sum  shall  go,  as  the 
residue  of  my  estate,  to  the  residuary  legatee  thereinafter  named. 

I  also  direct  that  another  trust  fund  of  ten  thousand  dollars  shall  be 
raised  out  of  my  estate  and  invested  at  interest.  And  I  give  the  interest 
and  produce  of  this  trust  fund,  when  and  as  it  accrues,  unto  the 

wife  of  .     It  is  my  will  that  the  income  of  this  fund,  or  principal 

sum  shall,  during  the  natural  life  of  said  either  be  paid  into  her 

proper  hand,  or  upon  her  order  or  receipt,  signed  by  her  alone,  notwithstand- 
ing her  coverture.  And  I  declare  that  neither  the  principal  nor  income  of 
this  fund  shall  be  subject  to  the  control,  debts,  or  engagements  of  the 
present  or  any  future  husband  of  said  the  same  being  intended 

for  her  sole  and  separate  use. 

At  the  decease  of  said  I  give  said  principal  sum  or  trust  fund 

to  the  issue  of  said  and  in  default  thereof  to  such  other  person 

or  persons  as  she,  by  a  last  will,  or  any  writing  in  the  nature  of  a  last  will, 
shall  give,  direct,  or  appoint  the  same  ;  and  in  default  of  such  appointment, 
it  is  my  will  that  said  trust  fund  or  principal  sum  shall  be  disposed  of  and 
pass  as  part  of  the  residue  of  my  estate. 

I  give  to  an  annuity  of  three  hundred  dollars,  to  be  paid  by 

two  equal  sums  to  said  half-yearly,  during  her  natural  life. 


FORMS  OF  WILLS.  783 

To  of  in  the  County  of  widow,  I  give 

an  annuity  of  one  hundred  dollars,  to  be  paid  her,  during  life,  in  quarter- 
yearly  payments. 

I  also  give  unto  of  in  the  County  of 

widow,  an  annuity  of  two  hundred  dollars,  to  be  paid  in  quarter-yearly  pay- 
ments during  her  life. 

I  order  my  executor,  hereinafter  named,  to  pay  of 

either  in  money,  or  such  articles  as  his  comfortable  maintenance  may  require, 
fifty  dollars  annually  during  his  life,  at  such  times  as  said  executor  shall 
think  proper. 

To  wife  of  of  I  give  an  annuity  of 

one  hundred  dollars,  to  be  paid  during  her  life  quarterly. 

To  wife  of  of  I  give  three  hundred 

dollars,  and  direct  three  notes,  held  by  me,  signed  by  her  husband,  for  one 
hundred  dollars  each,  to  be  cancelled. 

To  wife  of  of  there  shall  be  paid  in 

money,  or  delivered  in  articles  necessary  for  her  support,  at  the  discretion 
of  the  executor  of  this  my  will,  one  hundred  and  fifty  dollars  annually,  dur- 
ing her  life,  at  such  time  and  in  such  portions  as  he  shall  choose. 

I  give  to  son  of  one  thousand  dollars,  and  order 

that  he  shall  be  charged  with  such  amount  of  moneys  as  he  shall  be  my 
debtor  for,  upon  promissory  notes,  at  my  decease. 

I  devise  the  wood-lot  in  which  I  bought  of  one 

to  wife  of  above  named,  to  hold  to  her  for  life,  the 

remainder  I  give  to  the  child  or  children  of  said  who  shall  sur- 

vive her,  his,  her,  or  their  heirs  for  ever. 

If  shall  be  a  member  of  my  family  at  the  time  of  my  decease, 

she  shall  and  may  continue  to  reside  in  my  dwellin9;-house  and  participate 
in  the  use  of  the  stores  and  furniture,  in  common  with  others  of  my  family, 
for  the  term  of  six  months  thereafter. 

It  is  my  will  that  a  debt  of  three  hundred  and  thirty-two  dollars,  due  me 
from  of  shall  be  cancelled. 

To  each  of  those  of  the  following  named  persons  who  shall  be  in  my 
service  at  the  time  of  my  decease,  I  give  one  hundred  dollars,  viz : 

My  will  is  that  all  annuities  hereinbefore  given  shall  take  date  from  the 
day  of  the  probate  of  this  will  ;  and  all  legacies,  not  annuities,  shall  be  paid 
within  eight  months  from  the  same  period. 

It  is  my  will  that  all  the  capital  or  principal  sums  which  shall  be  requisite 
to  yield  the  several  annuities  above  mentioned  may,  by  my  executor,  be  paid 
to  to  be  held  and  managed  by  said  corporation  as  trustees  under 

this  will :  or,  if  the  said  executor  and  the  parties  beneficially  intere.sted 
therein  shall  so  elect,  said  capital  or  principal  sums,  or  any  of  them,  may  be 
placed  in  the  hands  of  such  trustee  or  trustees  as  shall,  upon  application  to 
the  Supreme  Court  of  sitting  in  chancery,  be  appointed  to  receive 

the  same,  and  perform  this,  my  will,  in  that  behalf. 


784  THE  DISPOSAL  OF  PROPERTY  BY  WILL. 

I  hereby  authorize  and  empower  whoever  shall  assume  the  execution  of 
this  will,  to  make  sale  of,  and  convey  any  parcel  or  parcels  of  real  estate, 
of  which  I  may  die  seized,  for  the  purpose  of  raising  any  and  all  such  sums 
of  money  as  shall  be  required  for  the  trust  funds,  annuities,  and  legacies 
iiercinbefore  directed  to  be  created,  given,  and  bequeathed.  All  such  sales 
shall  be  made  by  public  vendue,  after  notice  thereof  shall  have  been  given 
in  two  or  more  newspapers  printed  in  the  city  of  for  the  term  of 

fourteen  days  at  least  prior  to  such  sales  being  made. 

All  the  residue  of  my  estate,  real,  personal,  and  mixed,  wheresoever  it 
may  be  found,  and  of  whatsoever  it  may  consist,  I  give  and  devise  unto 
to  hold  to  him  and  his  heirs  forever. 

I  hereby  revoke  all  wills  by  me  heretofore  made,  and  constitute  the  said 
executor  of  this  my  last  will. 

In  Witness  Whereof,  I,  the  above-named  testator,  have  hereunto  set 
my  hand  and  seal,  this  twenty-sixth  day  of  in  the  year  of  our  Lord 

eighteen  hundred  and 

[L.S.] 

Then  and  there  signed,  sealed,  and  published  by  the  testator, 

as  and  for  his  last  will,  in  the  presence  of  us,  who,  at  his  request,  in  his 
presence,  and  in  presence  of  each  other,  have  hereto  set  our  names  as  wit 
nesses. 


ABSTRACT  OF  THE  LAWS  OF  ALL  THE  STATES 
AiND  TERRITORIES  COiNCERiNING  WILLS. 

ALABAMA. — Every  person  of  full  age  and  sound  mind  may  make  a 
will.  It  must  be  in  writing,  signed  by  the  testator,  attested  by  at  least  two 
witnesses  in  the  presence  of  the  testator.  Persons  of  the  age  of  eighteen 
may  dispose  of  personal  property  by  will. 

ARIZONA. — Every  person  of  full  age  or  married  may  make  a  will.  It 
must  be  in  writing,  signed  by  the  testator  and  attested  and  subscribed  in  his 
presence  by  two  or  more  witnesses.  If  wholly  written  by  the  testator  no 
witnesses  are  necessary. 


ABSTRACT  OF   WILLS.  785 

ARKANSAS. — Every  person  over  twenty-one  j-ears  of  age  may  devise 
real  and  personal  property,  and  persons  over  eighteen  may  bequeath  per- 
sonal property.  The  testator  must  subscribe  his  name  at  the  end  of  the  will, 
in  the  presence  of  two  witnesses,  and  acknowledge  it  to  be  his  will,  and  the 
witnesses  must  sign  at  the  request  of  the  testator.  When  the  entire  body 
and  signature  of  the  wiU  are  in  the  hand\\Titing  of  the  testator  it  may  be 
proved  by  the  evidence  of  three  witnesses  to  the  handwriting  and  signature 
without  subscribing  witnesses. 

CALIFORNIA. — Every  person  over  the  age  of  eighteen,  of  sound  mind, 
may  dispose  of  property,  real  or  personal,  by  will.  Wills,  unless  holographic, 
must  be  subscribed  at  the  end  bj'  the  testator,  or  som.e  person  in  his  presence, 
and  by  his  direction,  in  the  presence  of  two  attesting  wdtnesses,  or  acknowl- 
edged in  presence  of  such  witnesses,  and  must  be  attested  by  two  witnesses 
in  the  presence  of,  and  at  the  request  of,  the  testator.  Bequest  for  charitable 
purposes  must  be  made  at  least  thirty  days  before  death  of  testator  and  can- 
not exceed  one-third  of  estate  if  he  leave  legal  heirs. 

COLORADO. — Every  person  twenty-one  j-ears  of  age  if  a  male,  or 
eighteen  years  if  a  female,  may  dispose  of  property,  real  or  personal,  by 
will,  and  persons  seventeen  ^-ears  of  age  may  dispose  of  personal  estate. 
All  wills  must  be  in  writing,  signed  by  the  testator  or  some  one  in  his 
presence,  at  his  request,  and  attested  in  his  presence  by  two  or  more  credible 
witnesses. 

CONNECTICUT. — Ever\-  person  eighteen  j-ears  of  age,  or  more,  and  of 
sound  mind,  may  make  a  will,  and  every  de\-ise  passes  the  whole  title  unless 
clearh^  limited  ;  the  will  must  be  in  writing,  signed  by  the  testator,  and 
attested  by  three  witnesses  in  his  presence,  and  in  presence  of  each  other. 

DELAWARE. — Any  person  of  the  age  of  twentj'-one  years,  and  of 
sound  mind,  may  m.ake  a  will.  The  -will  must  in  A\-riting,  signed  by  the 
testator,  attested  and  subscribed  in  his  presence  by  two  credible  witnesses. 

DISTRICT  OP  COLUMBIA.— Any  person  t^vent^'-one  years  of  age  if  a 
male,  or  eighteen  if  a  female,  and  of  sound  mind,  may  make  a  will.  Wills 
of  real  estate,  unless  holographic,  must  be  signed  by  the  testator  and  attested 
and  subscribed  in  his  presence  by  three  or  more  credible  witnesses.  Wills 
of  personal  property  need  not  be  witnessed. 

FLORIDA. — Every  person  of  the  age  of  twenty-one  years,  and  of  sound 
mind,  may  make  a  will,  and  such  will  must  be  signed  by  the  testator  or  by 
some  one  in  his  or  her  presence,  and  by  his  or  her  direction,  and  attested 
and  subscribed  in  his  or  her  presence,  by  two  or  more  witnesses.  Nuncu- 
pative wills  must  be  proved  by  three  •^'itnesses  present. 

GEORGIA.  —  Persons  of  fourteen  years  of  age  and  sound  mind  may 
make  a  will.  A  married  woman  may  make  a  will  of  her  separate  estate. 
Wills  must  be  in  ^^^4ting,  signed  by  the  testator,  or  bj^  some  person  in  his 
presence,  and  by  his  express  direction,  and  attested  and  subscribed  by  at 
least  three  competent  wtnesses. 
50 


'^86  DISPOSAL    OF  PROPERTY  BY   WILL. 

IDAHO.  —  Any  person  of  the  age  of  eighteen  may  make  a  will.  It  must 
be  signed  by  the  testator  in  the  presence  of  two  witnesses,  who  must  sign  in 
the  presence  of  each  other,  unless  the  will  be  nuncupative  or  holographic. 

ILLINOIS.  —  Any  male  of  twenty-one  years,  or  female  of  eighteen  years, 
of  sound  mind  and  memory,  may  make  a  will.  It  must  be  in  writing,  signed 
by  the  testator,  or  by  some  one  in  his  presence,  and  by  his  direction,  and 
attested  by  two  or  more  credible  witnesses  in  the  presence  of  the  testator. 

INDIANA.  —  All  persons,  twenty-one  years  of  age  and  of  sound  mind, 
may  make  a  will.  Every  devise  passes  the  testator's  whole  interest.  The 
will  must  be  in  writing,  signed  by  the  testator,  or  in  his  presence,  and  by 
his  direction,  and  attested  and  subscribed  in  his  presence  by  two  or  more 

competent  witnesses. 

IOWA.  —  Testator  must  be  of  full  age  and  sound  mind.  Personal  prop- 
erty to  the  value  of  three  hundred  dollars  may  be  bequeathed  by  a  verbal 
(nuncupative)  will,  attested  by  two  competent  witnesses.  All  other  wills 
must  be  in  writing,  witnessed  by  two  competent  witnesses,  and  signed  by 
the  testator,  or  by  some  one  in  his  presence,  and  by  his  express  direction. 

KANSAS.  —  Any  person  of  full  age,  males  of  twenty-one,  and  females 
of  eighteen,  and  sound  mind,  may  make  a  will.  It  must  be  in  writing 
signed  at  the  end  by  the  testator,  or  by  some  one  in  his  presence,  and  by 
his  direction,  and  it  must  be  attested  in  the  presence  of  the  testator  by  two 
or  more  competent  witnesses,  who  saw  the  testator  sign,  or  heard  him 
acknowledge  the  will  for  his  last  will  and  testament. 

KENTUCKY.  —  The  testator  must  be  of  sound  mind,  and  not  under 
twenty-one  years,  nor  a  married  woman;  but  married  women  may  make  a 
will  of  their  separate  estate.  It  must  be  in  writing,  signed  by  the  testator, 
or  some  one  for  him,  and  if  not  wholly  written  by  himself,  must  be  sub- 
scribed or  acknowledged  in  the  presence  of  at  least  two  credible  witnesses, 
who  must  sign  in  the  presence  of  the  testator. 

LOUISIANA.  —  Wills  are  of  three  kinds:  i.  Nuncupative,  or  open 
testaments.  2.  Mystic,  or  sealed  testaments.  3.  Holographic  testaments. 
Nuncupative  testaments,  by  public  act,  must  be  received  by  a  notary  public 
in  the  presence  of  three  witnesses,  residing  where  the  will  is  executed,  or 
five  witnesses  not  residing  in  such  place.  It  must  be  dictated  by  the  tes- 
tator, and  written  by  the  notary  as  dictated,  then  read  to  the  testator  in  the 
presence  of  the  witnesses,  and  signed  by  the  testator,  and  attested  by  all 
the  witnesses.  Nuncupative  testaments,  by  private  act,  must  be  written  by 
the  testator  himself,  or  from  his  dictation,  in  the  presence  of  five  witnesses 
residing  in  the  place  where  the  will  was  made,  or  seven  not  residing  in  such 
place,  or  it  is  sufhcient  if  the  testator  presents  the  paper,  on  which  he  has 
written  the  will,  declaring  that  the  paper  contains  his  will.  It  must  be  read 
by  the  testator  to  the  witnesses,  and  signed  by  the  testator  and  all  the 
witnesses.  Mystic,  or  sealed  testaments,  are  made  as  follows:  The  testator 
must  sign  his  dispositions,  and  the  paper  then  closed  and  sealed.  He  shall 
then  present  it  thiis  closed  to  a  notary  public  and  seven  witnesses;  he  shall 
declare  it  to  be  his  last  will  and  testament  in  their  presence.     The  notary 


ABSTRACT  OF   WILLS.  787 

must  then  draw  up  the  act  of  superscription  on  the  same  paper  or  envelope, 
and  si^  it,  together  with  the  testator  and  the  witnesses.  Holographic  wills 
are  entirely  written,  dated,  and  signed  by  the  testator  himself.  No  woman, 
male  child  under  sixteen  years  of  age,  insane,  deaf  and  dumb,  or  blind 
person  can  be  a  witness  to  a  will. 

MAINE. —  The  testator  must  be  of  sound  mind,  and  twenty-one  years 
of  age,  and  the  will  must  be  signed  by  the  testator,  or  some  one  in  his  pres- 
ence, and  at  his  request,  and  subscribed  in  his  presence  by  three  credible 
^vitnesses,  not  interested  in  the  will. 

MARYLAND.  —  Every  person  of  twenty-one  years  of  age  if  a  male,  or 
eighteen  years  if  a  female,  may  make  a  will.  The  will  must  be  in  writing, 
signed  by  the  testator  or  some  one  in  his  presence,  and  by  his  express 
direction,  and  attested  and  subscribed  in  his  presence  by  two  or  more  cred- 
ible witnesses. 

MASSACHUSETTS.  —  Every  person  of  full  age  and  sound  mind  may 
make  a  will,  which  must  be  in  \\T4ting,  signed  by  the  testator,  or  by  some 
one  in  his  presence,  and  by  his  direction,  and  attested  and  subscribed  in  his 
presence  by  three  or  more  competent  witnesses. 

MICHIGAN.  —  The  testator  must  be  of  full  age  and  sound  mind.  A 
devise  passes  the  whole  interest,  unless  specially  limited.  The  will  must 
be  in  writing,  signed  by  the  testator,  or  some  one  in  his  presence,  and  by 
his  direction,  and  attested  and  subscribed  in  his  presence  by  two  or  more 
competent  witnesses. 

MINNESOTA.  —  The  requirements  of  a  ^vill  are  the  same  as  in  Mich- 
igan. 

MISSISSIPPI.  — The  testator  must  be  twenty-one  years  old,  whether 
male  or  female,  and  of  sound  mmd.  The  will  must  be  signed  by  the  testa- 
tor, or  some  one  in  his  presence,  and  by  his  direction,  and,  if  not  holographic, 
attested  by  two  credible  Tjntnesses,  who  sign  in  presence  of  the  testator. 

MISSOUEI.  —  Males  of  eighteen  years  of  age  may  make  wiU  of  per- 
sonal property;  and  of  twenty-one,  of  both  real  and  personal  estate. 
Females  of  eighteen  may  make  will  both  of  real  and  personal  estate.  The 
will  must  be  in  writing,  signed  by  the  testator,  or  some  one  by  his  direction, 
in  his  presence,  and  attested  by  two  or  more  competent  witnesses,  who  sign 
in  the  presence  of  the  testator. 

MONTANA.  —  Every  person,  over  the  age  of  eighteen,  and  of  sound 
mind,  may  dispose  of  property,  real  or  personal,  by  will.  The  will  must  be 
signed  by  the  testator,  or  by  some  person  in  his  presence,  and  by  his  express 
direction,  and  attested  and  subscribed  in  his  presence  by  two  or  more  com- 
petent witnesses.     A  holographic  will  need  not  be  witnessed. 

NEBRASKA. — Any  person  of  full  age  and  sound  mind  may  make  a 
will.  Wills  must  be  in  Avriting,  signed  by  the  testator,  or  some  one  in  his 
presence,  and  by  his  direction,  and  attested  and  subscribed  in  the  presence 
of  the  testator  by  two  or  more  competent  witnesses. 


788  DISPOSAL    OF  PROPERTY  BY   WILL. 

NEVADA. — The  testator  must  be  eighteen  years  of  age  and  of  sound 
mind.  The  will  must  be  in  writing,  signed  by  the  testator,  and  sealed  with 
his  seal,  or  by  some  one  in  his  presence,  by  his  direction,  and  attested  in 
the  presence  of  the  testator,  by  at  least  two  competent  witnesses. 

NEW  HAMPSHIRE. — Any  person  of  twenty-one  years  of  age  and 
sound  mind  may  make  a  will,  to  be  in  writing,  signed  and  sealed  by  the 
testator,  or  some  one  in  his  presence,  and  by  his  direction,  and  attested  and 
subscribed  by  three  or  more  credible  witnesses. 

NEW  JERSEY. — Testator  must  be  twenty-one  years  of  age  and  of 
sound  mind.  All  wills,  after  the  year  1850,  must  be  in  writing,  signed  by 
the  testator,  or  the  signature  acknowledged  by  him,  and  he  miist  declare 
the  writing  to  be  his  last  will  in  the  presence  of  two  witnesses,  who  are 
present  at  the  same  time,  and  who  must  subscribe  the  same  in  presence  of 
the  testator. 

NEW  MEXICO. — Any  person  twenty-one  years  of  age  and  of  sound 
mind  may  make  a  will.  Wills  may  be  written  or  verbal.  If  written,  thej- 
must  be  signed  by  the  testator,  or  some  person  for  him,  and  attested  by  two 
or  more  credible  witnesses.  Verbal  wills  must  be  attested  by  the  same 
number  of  witnesses,  who  must  testify  that  testator  was  of  sound  mind  and 
judgment,  and  must  all  be  present,  see  and  hear  testator  speak,  and  each 
must  understand  clearly  and  distinctly  every  part  of  the  will. 

NEW  YORK. — Males  of  eighteen  and  females  of  sixteen  may  make 
wills  of  personal  property,  but  only  persons  of  twenty-one  years  can  devise 
real  estate.  Wills  must  be  subscribed  by  the  testator  at  the  end,  in  the 
presence  of  each  of  the  attesting  witnesses,  or  acknowledged  by  him  in  their 
presence.  There  must  be  at  least  two  witnesses  who  sign  their  names  at 
the  end,  at  the  request  of  the  testator  ;  they  should  add  also  their  place 
of  business.  There  are  certain  statutory  restrictions  as  to  the  amount 
of  bequests  to  religious  or  charitable  institutions. 

NORTH  CAROLINA. — The  testator  must  be  twenty-one  years  of  age, 
and  of  sound  mind.  The  will  must  be  in  writing,  signed  by  the  testator,  or 
some  one  in  his  presence,  and  by  his  direction,  and  subscribed  in  his 
presence  by  at  least  two  disinterested  witnesses.  Holographic  wills,  signed 
by  the  testator,  and  found  among  his  valuable  papers  and  effects,  or  lodged 
in  the  hands  of  some  person  for  safe  keeping,  are  allowed,  and  the  hand- 
writing must  be  proved  by  three  witnesses. 

NORTH  DAKOTA. — Any  person  eighteen  years  of  age  and  of  sound 
mind  may  make  a  will.  Wills,  unless  holographic,  must  be  signed  by  the 
testator,  or  by  some  person  in  his  presence,  and  by  his  direction,  in  presence 
of  two  or  more  witnesses,  who  must  subscribe  their  names.  A  holographic 
will  need  not  be  witnessed. 

OHIO. — The  testator  must  be  of  full  age  and  sound  mind,  and  the  will 
must  be  in  writing,  signed  at  the  end  by  the  testator,  or  some  one  in 
his  presence  and  by  his  direction,  and  attested  by  two  or  more  compe- 
tent witnesses,  who  saw  the  testator  sign,  or  heard  him  acknowledge 
the  will. 


ABSTRACT  OF   WILLS. 


789 


OKLAHOMA.—  Any  person  over  eighteen  years  of  age  may  make  a  will. 
It  must  be  in  writing,  witnessed  by  at  least  two  competent  witnesses, 
who  shall  subscribe  the  same. 

OREGON. — Every  person  twenty-one  years  of  age  may  dispose  of 
property,  real  and  personal,  by  will,  and  every  person  of  eighteen  may 
bequeath  goods  and  chattels.  The  will  inust  be  in  writing,  signed  by 
the  testator,  or  some  one  for  him,  and  attested  by  two  or  more  compe- 
tent witnesses  in  his  presence. 

PENNSYLVANIA. — Any  person  of  full  age  and  sound  mind  may  make 
a  will.  It  must  be  in  writing,  signed  by  the  testator,  or  some  one  in 
his  presence  for  him,  and  attested  by  two  or  more  competent  witnesses. 

RHODE  ISLAND. — Persons  eighteen  years  of  age  and  of  sound  mind 
may  bequeath  personal  property,  and  persons  of  twenty-one  years  may 
devise  real  estate.  The  will  must  be  in  writing,  signed  by  the  testator, 
or  some  one  for  him,  and  attested  and  subscribed  in  his  presence  by  two  or 
more  witnesses. 

SOUTH  CAROLINA.— Persons  of  twenty-one  years  of  age  may  devise 
real  estate,  and  persons  under  twenty-one,  but  of  years  of  discretion, 
may  bequeath  personal  property.  Three  or  more  credible  witnesses  are 
necessar)^  who  must  sign  in  presence  of  the  testator.  The  will  must  be 
in  writing,  and  signed  by  the  testator. 

SOUTH  DAKOTA. — Every  person  eighteen  years  of  age  may  make  a 
will.  It  must  be  in  writing,  subscribed  by  the  testator,  or  by  some  person 
in  his  presence  and  by  his  direction,  in  the  presence  of  two  attesting  wit- 
nesses, who  must  subscribe  the  same.  A  holographic  will  need  not  be 
witnessed. 

TENNESSEE. — Any  person  of  sound  mind,  and  twenty-one  years  of 
age,  may  dispose  of  real  estate  by  will.  Males  at  fourteen,  and  females  at 
twelve,  may  bequeath  personal  property.  Wills  of  real  estate  must  be  sub- 
scribed by  the  testator,  or  some  one  for  him,  and  attested  and  subscribed  in 
his  presence,  by  at  least  two  witnesses.  Holographic  wills  found  among  the 
testator's  valuable  papers,  or  deposited  for  safe  keeping,  are  allowed,  if  the 
handwriting  is  proved  by  three  witnesses.  No  subscribing  witnesses  are 
necessary  to  wills  of  personality,  but  two  witnesses  or  equivalent  testimony 
are  necessary  to  establish  them. 

TEXAS. — Testator  must  be  twenty-one  years  of  age,  and  sound  mind, 
and  the  will  must  be  signed  by  testator,  or  for  him  in  his  presence,  and  by 
his  direction,  and  if  not  holographic,  attested  by  two  or  more  credible  wit- 
nesses over  fourteen  years  of  age. 

UTAH. — Any  person  of  the  age  of  eighteen  years  and  of  sound  mind 
may  dispose  of  property,  real  and  personal,  by  will.  The  will  must  be  in 
writing,  subscribed  by  the  testator,  and  attested  in  his  presence  by  two  or 
more  witnesses,  who  must  subscribe  the  same. 


>j^Q  DISPOSAL   OF  PROPERTY  BY   WILL. 

VERMONT. — Every  person  of  full  age  and  sound  mind  may  make  a 
will.  A  will  must  be  in  writing,  signed  by  the  testator,  or  for  him,  in  his 
presence,  and  by  his  direction,  and  attested  and  subscribed  by  three  or 
more  credible  witnesses,  in  his  presence,  and  in  presence  of  each  other. 

VIRGINIA. — Every  person  twenty-one  years  of  age,  and  of  sound 
mind,  may  make  a  will  of  real  estate,  and  persons  of  eighteen  years  may 
bequeath  personal  property.  The  will  must  be  signed  by  the  testator,  or 
some  one  for  him,  by  his  direction,  and  in  his  presence,  and,  unless  olo- 
graphic, attested  in  his  presence,  and  in  presence  of  each  other,  by  two  or 
more  competent  witnesses. 

"WASHINGTON. — Every  male  above  the  age  of  twenty-one  years,  and 
every  female  above  the  age  of  eighteen,  may  dispose  of  property,  real  and 
personal,  by  will.  The  will  must  be  in  writing,  signed  by  the  testator,  or 
by  some  person  under  his  direction,  and  attested  by  two  or  more  competent 
witnesses,  subscribing  their  names  in  the  presence  of  the  testator. 

"WEST  VIRGINIA. — The  testator  must  be  twenty-one  years  of  age,  and 
of  sound  mind.  The  will  inust  be  in  writing,  signed  by  the  testator,  or  by 
some  one  for  him,  in  his  presence,  and  by  his  direction,  and  unless  olo- 
graphic, the  signature  must  be  made  and  the  will  acknowledged  in  the 
presence  of  two  competent  witnesses,  present  at  the  same  time,  and  who 
subscribe  in  the  presence  of  the  testator. 

"WISCONSIN. — Every  person  of  full  age,  and  any  married  woman  of 
the  age  of  eighteen  years,  may  make  a  will.  Wills  must  be  in  writing, 
signed  by  the  testator,  or  some  one  in  his  presence,  and  by  his  direction, 
and  attested  and  subscribed  in  his  presence  by  two  or  more  competent 
witnesses. 

WYOMING. — Any  person  of  full  age  and  sound  mind  may  make  a 
will.  The  will  must  be  in  writing,  signed  by  the  testator,  or  by  some  other 
person,  in  his  presence  and  by  his  direction,  and  attested  by  two  competent 
witnesses. 


CHAPTER  XXXVIII. 

EXECUTORS  AND  ADMINISTRATORS. 

An  executor  is  a  person  named  in  the  will  of  a  deceased 
person,  to  settle  his  or  her  estate.  There  may  be  one  or  more; 
and    they  may  be  male  or  female.      An  administrator  is  one 


EXECUTORS  AND  ADMINISTRATORS.  y^i 

appointed  by  the  court  to  settle  the  estate  of  a  deceased  person. 
If  the  deceased  left  a  will,  but  did  not  appoint  an  executor,  or 
the  appointed  executor  refuses  to  act,  or  resigns,  or  dies,  or  for 
any  reason  fails  to  act,  an  administrator  is  appointed  by  the 
court  "  with  the  will  annexed."  The  husband  of  a  deceased 
wife,  or  the  wife  of  a  deceased  husband,  has  generally  the  right 
to  be  appointed  administrator  ;  after  them  the  next  of  kin  in  the 
order  of  relationship.  But  the  courts  have  some  discretion  in 
the  matter. 

They  act  as  the  personal  representatives  of  the  deceased, 
having  in  their  hands  his  means,  for  the  purpose  of  discharging 
his  liabilities,  or  executing  his  contracts,  and  of  carrying  into 
effect  his  will,  if  he  have  left  one  ;  and,  in  general,  they  are  liable 
only  so  far  as  these  means  (called  assets),  in  their  hands,  are 
applicable  to  such  a  purpose.  But  they  may  become  personally 
liable ;  and  a  clause  in  the  statute  of  frauds  refers  to  this  sub- 
ject, making  them  not  liable  to  pay  any  debt  out  of  their  own 
means,  unless  they  give  a  promise  to  that  effect,  in  writing, 
signed  by  them. 

In  this  country,  the  judicial  officer,  or  judge  who  has  the 
charge  of  the  settlement  of  estates,  of  the  proof  of  wills,  and  of 
proceedings  under  them,  is  generally  called  the  Judge  of  Pro- 
bate. But  in  some  States  he  is  called  Surrogate,  Register  or 
Registrar  of  Wills  or  of  Probate,  Judge  of  the  Orphan's  Court, 
etc.  His  powers  and  duties  are  very  similar  all  over  the  coun- 
try. From  his  decrees  or  decisions  an  appeal  may  generally  be 
taken,  by  a  party  who  thinks  himself  aggrieved,  to  the  Supreme 
Judicial  Court.  The  Judge  of  Probate  is  usually  a  county  offi- 
cer, and  his  jurisdiction  is  limited  to  his  county. 

If  an  executor  or  administrator  receives,  as  such,  a  promis- 
sory note  or  bill  of  the  deceased,  and  indorses  the  same  with  his 
name,  without  adding  "executor,"  or  "administrator,"  he  is 
liable  upon  it  personally.  If  he  makes  a  note  or  bill,  signing  it 
"as  executor,"  he  is  personally  liable,  unless  he  expressly  limits 
his  promise  to  pay,  by  the  words,  "  out  of  the  assets  of  my  tes- 
tator," or,  "if  the  assets  be  sufficient,"  or  in  some  equivalent 
way  ;  but  a  note  or  bill  so  qualified  would  not  be  negotiable, 
because  on  condition.     If  an  executor  or  administrator  submits 


792 


EXECUTORS  AND  ADMINISTRATORS, 


a  disputed  question  to  arbitration,  in  general  terms,  and  without 
an  express  limitation  of  his  liability,  and  the  arbitrators  award 
that  he  shall  pay  a  certain  sum,  he  is  liable  to  pay  it  whether  he 
has  assets  or  not.  But  if  the  award  be  merely  that  a  certain 
sum  is  due  from  the  estate  of  the  deceased,  without  saying  that 
the  executor  or  administrator  is  to  pay  it,  he  is  not  precluded  from 
denying  that  he  has  assets. 

Where  a  contract  of  the  deceased  is  of  an  executory  nature,  and 
the  I  personal  representative  can  fairly  and  sufficiently  execute 
all  that  the  deceased  could  have  done,  he  may  do  so,  and  enforce 
the  contract.  But  where  an  executory  contract  is  of  a  strictly 
personal  nature — as,  for  example,  with  an  author  for  a  specified 
work,  or  with  an  artist  for  a  painting,  the  death  of  the  writer 
before  his  book  is  completed,  or  of  the  artist  before  the  painting 
is  finished,  absolutely  determines  the  contract,  unless  what 
remains  to  be  done — as,  for  example,  in  the  case  of  a  book,  the 
preparing  of  an  index,  or  table  of  contents,  etc.,  can  certainly 
be  done  as  well  and  to  the  same  purpose  and  effect  by  another. 

If  executors  or  administrators  pay  away  money  of  the  de- 
ceased by  mistake,  or  enter  into  contracts  for  carrying  on  his 
business  for  the  benefit  of  his  estate,  and  to  wind  up  his  affairs, 
they  may  sue  on  such  contracts  either  in  their  individual  or 
their  representative  capacities ;  but  they  should  sue  in  the  latter 
capacity,  in  order  to  avoid  a  set-off  against  them  of  their  indi- 
vidual debts. 

The  title  of  an  administrator  does  not  exist  until  the  grant 
of  administration.  Then  it  goes  back  to  the  death  of  the  de- 
ceased ;  but  only  in  order  to  protect  the  estate,  and  not  for  any 
other  purpose.  And  if  an  agent  sells  goods  of  the  deceased, 
after  his  death,  and  in  ignorance  of  his  decease,  the  adminis- 
trator may  adopt  the  contract,  and  sue  upon  it. 

On  the  death  of  one  of  several  executors,  either  before  or 
after  probate,  the  entire  right  of  representation  survives  to  the 
others.  But  if  an  administrator  dies,  or  a  sole  executor  dies,  no 
interest  and  no  right  of  representation  is  transmitted  to  his  per- 
sonal representatives. 

An  executor  derives  his  authority  from  the  will,  and  his 
duties  begin  at  the  death  of  the  testator.  They  may  be  stated 
thus  : 


EXECUTORS  AND  ADMINISTRATORS.  7^3 

1.  He  should  cause  the  deceased  to  be  buried  in  a  suitable 
manner. 

2.  He  should  offer  the  will  for  probate  as  soon  as  he  can  with 
a  reasonable  regard  to  his  convenience  ;  and  in  proving  the  will, 
filing  bonds,  giving  notice,  making  and  returning  an  inventory, 
and  the  like,  he  must  conform  to  the  law  of  the  State  and  the 
rules  of  the  probate ;  and  he  will  obtain  at  the  office  sufficient 
information  on  all  these  points. 

3.  He  must  collect  the  property,  and  after  paying  the  debts, 
he  must  distribute  or  dispose  of  the  remainder  as  the  will 
directs. 

4.  He  must  render  his  account  from  time  to  time,  until  a  final 
settlement  of  the  estate  is  made,  and  will  be  directed  at  the  Pro- 
bate Office  when  and  how  to  file  his  accounts. 

An  administrator  derives  his  authority  from  the  court.  But 
his  duties  are  then  substantially  similar  to  those  of  an  executor; 
excepting,  that  he  must  distribute  and  dispose  of  the  estate  as 
the  law  requires,  as  he  has  no  will  to  direct  him,  unless  he  is  an 
administrator  with  the  will  annexed.  The  debts  must  be  paid  in 
a  certain  order.  This  is  not  precisely  the  same  in  all  the  States  ; 
but  it  is  very  generally  as  follows  : 

1.  Funeral  expenses,  charges  of  the  last  sickness,  and  pro- 
bate charges. 

2.  Debts  due  to  the  United  States. 

3.  Debts  due  to  the  State  in  which  the  deceased  had  his 
home. 

4.  Any  liens  attaching  to  the  property  by  law. 

5.  To  creditors  generally. 

If  the  estate  is  insufficient  to  pay  all  the  debts  due  from  it,  as 
soon  as  the  executor  or  administrator  finds  this  to  be  the  case, 
he  should  represent  the  case  as  insolvent  at  the  Probate 
Court,  and  thereafter  follow  the  requirements  of  the  law  of  the 
State  and  the  rules  of  the  Probate  Office,  in  reference  to  insol- 
vent estates  of  deceased  persons. 

In  most  of  the  States,  all  the  necessary  forms  or  instruments 
are  given  to  applicants  at  the  Probate  Office. 


794  GUARDIANS, 


CHAPTER  XXXIX. 
GUAEDIANS. 

Guardians  of  all  descriptions  are  treated  by  courts  as 
trustees  ;  and  in  almost  all  cases  they  are  required  to  give  secu- 
rity for  the  faithful  discharge  of  their  duty,  unless  the  guardian 
be  appointed  by  will,  and  the  testator  has  exercised  the  power 
given  him  by  statute,  of  requiring  that  the  guardian  shall  not 
be  called  upon  to  give  bonds.  But,  even  in  this  case,  such 
testamentary  provision  is  wholly  personal  ;  and  if  the  individ- 
ual dies,  refuses  the  appointment,  or  resigns  it,  or  is  removed 
from  it,  and  a  substitute  is  appointed  by  court,  this  substitute 
must  give  bonds. 

The  guardian  is  held,  in  this  country,  to  have  only  a  naked 
authority,  not  coupled  with  an  interest.  His  possession  of  the 
property  of  his  ward  is  not  such  as  gives  him  a  personal  interest. 
being  only  for  the  purpose  of  agency.  But  for  the  benefit  t£ 
his  ward  he  has  a  very  general  power  over  it.  He  manages  and 
disposes  of  the  personal  property  at  his  own  discretion,  although 
it  is  safer  for  him  to  obtain  the  power  of  the  court  for  any 
important  measure.  He  may  lease  the  real  estate,  if  appointed 
by  will  or  court ;  he  cannot,  however,  sell  the  real  estate  with- 
out leave  of  the  proper  court.  Nor  should  he  convert  the 
personal  estate  into  real,  without  such  leave. 

As  trustee,  a  guardian  is  held  to  a  strictly  honest  discharge 
of  his  duty,  and  cannot  act  in  relation  to  the  subject  of  his 
trust  for  his  own  personal  benefit,  in  any  contract  whatever. 
And  if  a  benefit  arises  thereby,  as  in  the  settlement  of  a  debt 
due  from  the  ward,  this  benefit  belongs  wholly  to  the  ward. 
And  it  has  been  held  that  if  a  guardian  makes  use  of  his  own 
money  to  erect  buildings  on  the  land  of  his  ward,  without 
having  an  order  of  the  court  therefor,  he  cannot  charge  the 
same  in  account  with  his  ward,  or  recover  the  amount  from 
the  ward.  But  we  doubt  whether  a  rule  so  severe  would  be 
applied  unless  for  special  reasons.  He  must  neither  make  nor 
suffer  any  waste  of  the  inheritance,  and  is  neld  very  strictly  to 
a  careful  management  of  all  personal  property.     He  is  respon- 


GUARDIANS.  -70^ 

sible  not  only  for  any  misuse  of  the  ward's  money  or  stock,  but 
for  letting  it  lie  idle ;  and  if  he  does  so  without  sufficient  cause, 
he  must  allow  the  ward  interest  or  compound  interest  in  his 
account. 

To  secure  the  proper  execution  of  his  trust,  he  is  not  only 
liable  to  an  action  by  the  ward,  after  the  guardianship  termi- 
nates, but,  during  its  pendency,  the  ward  may  call  him  to 
account  by  his  next  friend,  or  by  a  guardian  appointed  by  tha 
court  for  the  action.  The  courts  have  gone  so  far  as  to  set 
aside  transactions  which  took  place  soon  after  the  ward  came 
of  age,  and  which  were  beneficial  only  to  the  former  guardian, 
on  the  presumption  that  undue  influence  was  used,  and  on  the 
ground  of  public  utility  and  policy. 

A  guardian  cannot,  by  his  own  contract,  bind  the  person  or 
estate  of  his  ward  ;  but  it  he  promise,  on  a  sufficient  considera- 
tion, to  pay  the  debt  of  his  ward,  he  is  personally  bound  by  his 
promise,  although  he  expressly  promises  as  guardian.  And  it 
is  a  sufficient  consideration  if  such  promise  discharge  the  debt 
of  the  ward.  And  a  guardian  who  thus  discharges  the  debt  of 
his  ward  may  lawfully  indemnify  himself  out  of  the  ward's 
estate,  or  if  he  be  discharged  from  his  guardianship,  he  may 
have  an  action  against  the  ward  for  money  paid  for  his  use. 
An  action  will  not  lie  against  a  guardian  on  a  contract  made  by 
the  ward,  but  must  be  brought  against  the  ward,  and  be  defended 
by  the  guardian. 

The  guardianship  is  a  trust  so  strictly  personal,  or  attached 
to  the  individual,  that  it  cannot  be  transferred  from  him,  either 
by  his  own  assignment  or  devise,  or  by  inheritance  or  succes- 
sion. 

A  married  woman  cannot  become  a  guardian  without  the 
consent  of  her  husband;  but  with  that  she  may.  A  single 
woman  who  is  a  guardian  generally  loses  her  guardianship  by 
marriage  ;  but  she  may  be  re-appointed.  In  some  States,  she 
loses  it  by  statute  ;  in  others,  not. 


796  JNTERPRETATION  OF  CONTRACTS. 

CHAPTER  XL. 
CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS. 


SECTION  I. 

GENERAL   PURPOSE    AXD    PRINCIPLES    OF    COXSTRUCTION. 

The  importance  of  a  just  and  rational  construction  of  every 
contract  and  every  instrument,  is  obvious.  If  any  one  contract 
is  properly  construed,  justice  is  done  to  the  parties  directly 
interested  therein.  But  the  rectitude,  consistency,  and  uni- 
formity of  all  construction,  enables  all  parties  to  do  justice  to 
themselves.  For  then  all  parties,  before  they  enter  into  con- 
tracts, or  make  or  accept  instruments,  may  know  the  force  and 
effect  of  the  words  they  employ,  of  the  precautions  they  use, 
and  of  the  provisions  which  they  make  in  their  own  behalf,  or 
permit  to  be  made  by  other  parties. 

It  is  obvious  that  this  consistency  and  uniformity  of  con- 
struction can  exist  only  so  far  as  construction  is  governed  by 
fixed  principles,  or,  in  other  words,  is  matter  of  law.  And  hence 
arises  the  very  first  rule ;  which  is,  that  what  a  contract  means 
is  a  question  of  law.  It  is  the  court,  therefore,  that  determines 
the  construction  of  a  contract.  They  do  not  state  the  rules  and 
principles  of  law  by  which  the  jury  are  to  be  bound  in  constru' 
ing  the  language  which  the  parties  have  used,  and  then  direct 
the  jury  to  apply  them  at  their  discretion  to  the  question  of 
construction  ;  nor  do  they  refer  to  these  rules  unless  they  think 
proper  to  do  so  for  the  purpose  of  illustrating  and  explaining 
their  own  decision.  But  they  give  to  the  jury,  as  matter  of 
law,  what  the  legal  construction  of  the  contract  is,  and  this  the 
jury  are  bound  absolutely  to  take. 

A  distinction  is  to  be  observed  between  the  construction  of 
a  contract  a,nd  the  correction  of  a  mistake.  For,  if  it  were  in 
proof  that  the  parties  had  intended  to  use  one  word,  and  that 
another  was  in  fact  used  by  a  mere  verbal  error  in  copying  or 
writing,  such  error  might  be  corrected  by  a  court  of  equity  upon 
a  bill  filed  for  that  purpose,  and   the  instrument  so  corrected 


SOME  GENERAL  RULES  OF  CONSTRUCTION.         'jc)y 

would  be  looked  upon  as  the  contract  which  the  parties  had 
made,  and  be  interpreted  accordingly.  But  this  jurisdiction  is 
confined  strictly  to  those  cases  where  different  language  !>:;  . 
been  used  from  that  which  the  parties  intended.  For  if  tlic 
words  employed  were  those  intended  to  be  used,  but  their  actual 
meaning  was  totally  different  from  that  which  the  parties  sup- 
posed and  intended  them  to  bear,  still  this  actual  meaning  would, 
generally,  if  not  always,  be  held  to  be  their  legal  mxCaning. 
Upon  sufificient  proof  that  the  contract  did  not  express  the  mean- 
ing of  the  parties,  it  might  be  set  aside  ;  but  a  contract  which 
the  parties  intended  to  make,  but  did  not  make,  cannot  be  set 
up  in  the  place  of  one  which  they  did  make,  but  did  not  intend 
to  make. 

SECTION  II. 

SOME  OF  THE  GENERAL  RULES  OF  CONSTRUCTION. 

The  subject-matter  of  the  contract  is  to  be  fully  considered. 
^There  are  very  many  words  and  phrases  which  have  one  mean- 
ing in  ordinary  narration  or  composition,  and  quite  another 
when  they  are  used  as  technical  words  in  relation  to  some  spe- 
cial subject ;  and  it  is  obvious  that,  if  this  be  the  subject-matter 
of  the  contract,  it  must  be  supposed  that  the  words  are  used  in 
this  specific  and  technical  sense. 

So,  too,  the  situation  of  the  parties  at  the  time,  and  of  the 
property  which  is  the  subject-matter  of  the  contract,  and  the 
intention  and  purpose  of  the  parties  in  making  the  contract, 
will  often  be  of  great  service  in  guiding  the  construction,  be- 
cause this  intention  will  be  carried  into  effect  so  far  as  the  rules 
of  language  and  the  rules  of  law  will  permit.  So  the  moral 
rule  may  be  applicable,  that  a  party  will  be  held  to  that  mean- 
ing which  he  knew  the  other  party  supposed  the  words  to  bear, 
if  this  can  be  done  without  making  a  new  contract  for  the 
parties. 

Indeed,  the  very  idea  and  purpose  of  construction  imply  a 
previous  uncertainty  as  to  the  meaning  of  the  contract ;  for 
where  this  is  clear  and  unambiguous,  there  is  no  room  for  con- 
struction, and  nothing  for  construction  to  do.  A  court  would 
not.  by  construction  of  a  contract,  defeat  the  express  stipulations 


^q8  interpretation  of  contracts. 

of  the  parties.  And  if  a  contract  is  false  to  the  actual  meaning 
and  purpose  of  the  parties,  or  of  either  party,  the  remedy  does 
not  lie  in  construction  ;  but,  if  the  plaintiff  be  the  injured  party, 
in  assuming  the  contract  to  be  void,  and  establishing  his 
rights  by  other  and  appropriate  means  ;  or,  if  the  defendant, 
be  injured  by  defending  against  the  contract  on  the  ground  of 
fraud  or  mistake,  if  the  facts  support  such  a  defence. 

A  construction  which  would  make  the  contract  legal  is  pre- 
^rred  to  one  which  would  have  an  opposite  effect ;  and  by  an 
extension  of  the  same  pri-nciple,  where  certain  things  are  to  be 
done  by  the  contract  which  the  law  has  regulated  in  whole  or  in 
part,  the  contract  will  be  held  to  mean  that  they  should  be 
done  in  such  a  way  as  would  be  either  required  or  indicated  by 
the  law. 

The  question  may  be  whether  the  words-  used  should  be 
taken  in  a  comprehensive  or  a  restricted  sense  ;  in  a  general  or 
a  particular  sense ;  in  the  popular  and  common,  or  in  some 
unusual  and  peculiar  sense.  In  all  these  cases  the  court  wiU 
endeavor  to  give  to  the  contract  a  rational  and  just  construc- 
tion ;  but  the  presumption — of  greater  or  less  strength,  accord- 
ing to  the  language  used,  or  the  circumstances  of  the  case — 
is  in  favor  of  the  comprehensive  over  the  restricted,  the 
general  over  the  particular,  the  common  over  the  unusual 
sense. 

It  is  a  rule  that  the  whole  contract  should  be  considered  in 
determining  the  meaning  of  any  or  of  all  its  parts.  The  reason 
is  obvious.  The  same  parties  make  all  the  contract,  and  may 
be  supposed  to  have  had  the  same  purpose  and  object  in  view 
in  all  of  it,  and  if  this  purpose  is  more  clear  and  certain  in  some 
parts  than  in  others,  those  which  are  obscure  may  be  illustrated 
by  the  light  of  those  which  are  clear.  Thus,  the  condition  of  a 
bond  may  help  to  explain  the  obligatory  part.  And  the  recital 
in  a  deed  or  agreement  has  sometimes  great  influence  in  the 
interpretation  of  other  parts  of  the  instrument.  The  contract 
may  be  contained  in  several  instruments,  which,  if  made  at  the 
same  time,  between  the  same  parties,  and  in  relation  to  the 
same  subject,  will  be  held  to  constitute  but  one  contract,  and 
the  court  will  read  them  in  such  order  of  time  and  priority  as 


SOME  GENERAL  RULES  OF  CONSTRUCTIOX.         ^^o 

will  carry  into  effect  the  intention  of  the  parties,  as  the  same 
may  be  gathered  from  all  the  instruments  taken  together.  And 
.the  recitals  in  each  may  be  explained  or  corrected  by  a  refer- 
ence to  any  other,  in  the  same  way  as  if  they  were  only  several 
parts  of  one  instrument. 

Another  rule  requires  that  the  contract  should  be  supported 
rather  than  defeated.  The  court  cannot,  however,  through  a 
desire  that  there  should  be  a  \-alid  contract  between  the  parties, 
undertake  to  reconcile  conflicting  and  antagonistic  expressions, 
of  which  the  inconsistency  is  so  great  that  the  meaning  of  the 
parties  is  necessarily  uncertain.  Nor  where  the  language  dis- 
tinctly imports  illegality,  should  they  construe  it  in  a  different 
and  a  legal  sense,  for  this  would  be  to  make  a  contract  for  the 
parties  which  they  have  not  made  themselves.  But  where  there 
is  room  for  it,  the  court  will  give  a  rational  and  equitable  inter 
pretation,  which,  though  neither  necessary  nor  obvious,  has  the 
advantage  of  being  just  and  legal,  and  supposes  a  lawful  con- 
tract which  the  parties  may  fairly  be  regarded  as  having  made 
So,  for  the  sam-e  reason,  all  the  parts  of  the  contract  will  b*^ 
construed  in  such  a  way  as  to  give  force  and  validity  to  all  of 
them,  and  to  all  of  the  language  used,  where  that  is  possible. 

All  legal  instruments  should  be  grammatically  written,  and 
should  be  construed  according  to  the  rules  of  grammar.  But 
this  is  not  an  absolute  rule  of  law.  On  the  contrary,  it  is  so  far 
immaterial  in  what  part  of  an  instrument  any  clause  is  written^ 
that  it  will  be  read  as  of  any  place  and  with  any  context,  and,  if 
necessary,  transposed,  in  order  to  give  effect  to  the  certain 
meaning  and  purpose  of  the  parties.  Still  this  will  be  done  only 
when  their  certain  and  evident  intent  requires  it.  Inaccuracy 
or  confusion  in  the  arrangement  of  the  parts  and  clauses  of  an 
instrument  is,  therefore,  always  dangerous  ;  because  the  intent 
may  in  this  way  be  made  so  uncertain  as  not  to  admit  of  a 
remedy  by  construction.  Generally,  all  relative  words  are  read 
as  referring  to  the  nearest  antecedent.  But  this  rule  of  grammar 
is  not  a  rule  of  law,  where  the  whole  instrument  shows  plainly 
that  a  reference  was  intended  to  an  earlier  antecedent. 

So,  it  is  a  general  proposition,  that  where  clauses  are  repug- 
nant and   incompatible,  the  earlier  prevails  in  deeds  and  other 


8cxD  INTERPRETATIO.X  OF  CONTRACTS. 

instruments  among  the  living,  if  the  inconsistency  be  not  so 
great  as  to  avoid  the  instrument  for  uncertainty.  But  in  the 
construction  of  wills  it  has  been  said  that  the  latter  course  pre- 
vails, on  the  ground  that  it  is  presumed  to  be  a  subsequent 
thought  or  purpose  of  the  testator,  and  therefore  to  express  his 
last  w^ill. 

An  inaccurate  description,  and  even  a  wrong  name  of  a  per- 
son, will  not  necessarily  defeat  an  instrument.  But  it  is  said 
that  an  error  like  this  cannot  be  corrected  by  construction,  unless 
there  is  enough  beside  in  the  instrument  to  identify  the  person, 
and  thus  to  supply  the  means  of  making  the  correction.  That 
is,  taking  the  whole  instrument  together,  there  must  be  a  rea- 
sonable certainty  as  to  the  person.  It  is  also  said  that  only 
those  cases  fall  within  the  rule  in  which  the  description  so  fa*" 
as  it  is  false  applies  to  no  person,  and  so  far  as  it  is  true  applies 
only  to  one.  But  even  if  the  name  or  description,  where  erro 
neous,  apply  to  a  wrong  person,  we  think  the  law  would  permii 
correction  of  the  error  by  construction,  where  the  instrument, 
as  a  whole,  showed  certainly  that  it  was  an  error,  and  also  showed 
with  equal  certainty  how  the  error  might  and  should  be  cor- 
rected. 

Instruments  are  often  used  which  are  in  part  printed  and  in 
part  written  ;  that  is,  they  are  printed  with  blanks,  wdiich  are 
afterwards  filled  up;  and  the  question  may  occur,  to  which  a 
preference  should  be  given.  The  general  answer  is,  to  the 
written  part.  What  is  printed  is  intended  to  apply  to  large 
classes  of  contracts,  and  not  to  any  one  exclusively  ;  the  blanks 
are  left  purposely,  that  the  special  statements  or  provisions 
should  be  inserted,  which  belong  to  this  contract  and  not  to 
others,  and  thus  discriminate  this  from  others.  And  it  is  reason- 
able to  suppose  that  the  attention  of  the  parties  was  more  closely 
given  to  those  phrases  which  they  themselves  selected,  and  which 
express  the  especial  particulars  of  their  own  contract,  than  to 
those  more  general  expressions  which  belong  to  all  contracts  of 
this  class.  But  if  the  whole  contract  can  be  construed  together, 
so  that  the  written  words  and  those  printed  make  an  intelligible 
contract,  this  construction  should  be  adopted.  Because  the 
intention  of  the  parties   is   presumed  to  be  "alive  and  active 


THE  rRESUMPTIONS  OF  LAW.  8or 

throughout  the  whole  instrument,  and  that  no  averments  are 
anywhere  inserted  without  meaning  and  without  use." 

SECTION  III. 

ON    THE   PRESUMPTIONS    OF   LAW. 

There  are  some  general  presumptions  of  law  which  may  be 
considered  as  affecting  the  construction  of  contracts. 

Thus,  it  is  a  presumption  of  law  that  parties  to  a  simple  con- 
tract intended  to  bind  not  only  themselves,  but  their  personal 
representatives  ;  and  such  parties  may  sue  on  a  contract,  although 
not  named  therein.  Hence,  as  we  have  seen,  executors,  though 
not  named  in  a  contract,  are  liable,  so  far  as  they  have  assets, 
for  the  breach  of  a  contract  which  was  broken  in  the  lifetime  of 
their  testator.  And  if  the  contract  was  not  broken  in  his  life 
time,  they  must  not  break  it,  but  will  be  held  to  its  performance, 
unless  this  presumption  is  overcome  by  the  nature  of  the  con 
tract ;  as  where  the  thing  to  be  done  required  the  personal  skill 
of  the  testator  himself.  So,  too,  if  several  persons  stipulate  fci 
the  performance  of  any  act,  without  words  of  severalty,  the 
presumption  of  law  is  here  that  they  intended  to  bind  themselves 
jointly.  But  this  presumption  also  might  be  rebutted  by  the 
nature  of  the  work  to  be  done,  if  it  were  certain  that  separate 
things  were  to  be  done  by  separate  parties,  who  could  not  join 
in  the  work. 

It  is  also  a  legal  presumption  that  every  grant  carries  with 
it  whatever  is  essential  to  the  use  and  enjoyment  of  the  grant. 
But  this  rule  applies  more  strongly  to  grants  of  real  estate  than 
to  transfers  of  personal  property.  Thus,  if  land  be  granted  to 
another,  a  right  of  way  to  the  land  will  go  with  the  grant. 

Where  anything  is  to  be  done,  as  goods  to  be  delivered,  or 
the  like,  and  no  time  is  specified  in  the  contract,  it  is  then 
presumption  of  law  that  the  parties  intended  and  agreed  tha 
the  thing  should  be  done  in  a  reasonable  time.  But  what  is  a 
reasonable  time  is  a  question  of  law  for  the  court.  They  will 
consider  all  the  facts  and  circumstances  of  the  case  in  determin- 
ing this,  and  if  any  facts 'bearing  upon  this  point  are  in  question 
it  will  be  the  province  of  the  jury  to  settle  those  facts,  although 
51 


8o2  INTERPRETATION  OF  CONTRACTS. 

the  influence  of  the  facts  when  they  are  ascertained,  upon  the 
question  of  reasonableness  of  time,  remains  to  be  determined 
by  the  court. 

SECTION  IV. 

OF  THE  EFFECT  OF  CUSTOM  OR  USAGE. 

We  have  already  had  occasion  to  remark,  that  a  custom 
which  may  be  regarded  as  appropriate  to  the  contract  and  com- 
prehended by  it,  has  often  very  great  influence  in  the  construction 
of  its  language.  The  general  reason  of  this  is  obvious  enough. 
If  parties  enter  into  a  contract,  by  virtue  whereof  something  is 
to  be  done  by  one  or  both,  and  this  thing  is  often  done  in  their 
neighborhood,  or  by  persons  of  like  occupation  with  themselves, 
and  is  always  done  in  a  certain  way,  it  must  be  supposed  that 
they  intended  it  should  be  done  in  that  way.  The  reason  for 
this  supposition  is  nearly  the  same  as  that  for  supposing  thai 
the  common  language  which  they  use  is  to  be  taken  in  its  com- 
mon  meaning.  And  the  rule  that  the  meaning  and  intent  of 
the  parties  govern,  wherever  this  is  possible,  comes  in  and 
operates.  Hence  an  established  custom  may  add  to  a  contract 
stipulations  not  contained  in  it ;  on  the  ground  that  the  parties 
may  be  supposed  to  have  had  these  stipulations  in  their  minds 
as  a  part  of  their  agreement,  when  they  put  upon  paper  or 
expressed  in  words  the  other  part  of  it.  So  custom  may  control 
and  vary  the  meaning  of  words  ;  giving  even  to  such  v/ords  as 
those  of  number  a  sense  entirely  different  from  that  which  they 
commonly  bear,  and  which  indeed  by  the  rules  of  language,  and 
in  ordinary  cases,  would  be  expressed  by  another  word. 

This  influence  of  custom  was  first  admitted  in  reference  to 
mercantile  contracts.  And  indeed  almost  the  whole  of  the  law- 
merchant,  if  it  has  not  grown  out  of  custom  sanctioned  by  courts 
and  thus  made  law,  has  been  very  greatly  modified  in  that  way. 
For  illustration  of  this,  w^e  may  refer  to  the  law  of  bills  and  notes, 
insurance,  and  contracts  of  shipping  generally.  And  although 
doubts  have  been  expressed  whether  it  was  wise  or  safe  to  per- 
mit express  contracts  to  be  controlled,  or,  if  not  controlled, 
affected  by  custom  in  the  degree  in  which  it  seems  now  to  be 
established  that  they  may  be,  this  operation  of  custom  is  now 


THE  EFFECT  OF  CUSTOM  OR  USAGE.  803 

fixed  by  law,  and  extended  to  a  vast  variety  of  contracts  ;  and 
indeed  to  all  to  which  its  privileges  properly  apply.  v\nd  quali- 
fied and  guarded  as  it  is,  it  seems  to  be  no  more  than  reasonable. 
In  fact,  it  may  be  doubted  whether  a  large  portion  of  the  com- 
mon law  of  England  and  of  this  country  rests  upon  any  other 
basis  than  that  of  custom.  The  theory  has  been  held,  that  the 
actual  foundation  of  most  ancient  usages  was  statute  law,  which 
the  lapse  of  time  has  hidden  out  of  sight.  This  is  not  very 
probable  as  a  fact.  The  common  law  is  every  day  adopting  as 
rules  and  principles  the  mere  usages  of  the  community,  or  of 
those  classes  of  the  community  who  are  most  conversant  with 
the  matters  to  which  these  rules  relate  ;  and  it  is  certain  that  a 
large  proportion  of  the  existing  law  first  acquired  force  in  this 
way. 

Other  facts  must  be  considered ;  as  how  far  the  meaning 
sought  to  be  ]}\x\.  on  the  words  departs  from  their  common  mean- 
ing as  given  by  the  dictionary,  or  by  general  use,  and  whether 
other  makers  of  this  article  used  these  words  in  various  senses, 
or  used  other  words  to  express  the  alleged  meaning.  Because' 
the  main  question  is  always  this  :  Can  it  be  said  that  both  par- 
ties ought  to  have  used  these  words  in  this  sense,  and  that  each 
party  had  good  reason  to  believe  that  the  other  party  so  under- 
stood them  .'' 

Custom  and  usage  are  very  often  spoken  of  as  if  they  were 
the  same  thing.  But  this  is  a  mistake.  Custom  is  the  thing 
to  be  proved,  and  usage  is  the  evidence  of  the  custom.  Whether 
a  custom  exists  is  a  question  of  fact.  But  in  the  proof  of  this 
fact  questions  of  law  of  two  kinds  may  arise.  One,  whether  the 
evidence  is  admissible,  which  is  to  be  settled  by  the  common 
principles  of  the  law  of  evidence.  The  other,  whether  the  facts 
stated  are  legally  sufficient  to  prove  a  custom.  If  one  man  tes- 
tified that  he  had  done  a  certain  thing  once,  and  had  heard  that 
his  neighbor  had  done  it  once,  this  evidence  would  not  be  given 
to  the  jury  for  them  to  draw  from  it  the  inference  of  custom  if 
they  saw  fit,  because  it  would  be  legally  insufficient.  But  if 
many  men  testified  to  a  uniform  usage  within  their  knowledge, 
and  were  uncontradicted,  the  court  would  say  whether  this  usage 
was  sufficient  in  quantity  and  quality  to  establish  a  custom,  and 


8o4  INTERPRETATION  OF  CONTRACTS. 

if  they  deemed  it  to  be  so,  would  instruct  the  jury,  that,  if  they 
believed  the  witnesses,  the  custom  was  proved.  The  cases  on 
this  subject  are  numerous.  But  no  definite  rule  as  to  the  proof 
of  custom  can  be  drawn  from  them,  other  than  that  derivable 
from  the  reason  on  which  the  legal  operation  of  custom  rests  ; 
namely,  that  the  parties  must  be  supposed  to  have  contracted 
with  reference  to  it. 

As  a  general  rule,  the  knowledge  of  a  custom  must  be 
brought  home  to  a  party  who  is  to  be  affected  by  it.  But  if  it 
be  shown  that  the  custom  is  ancient,  very  general  and  well 
known,  it  will  often  be  a  presumption  of  law  that  the  party  had 
knowledge  of  it ;  although,  if  the  custom  appeared  to  be  more 
recent,  and  less  generally  known,  it  might  be  necessary  to  es- 
tablish by  independent  proof  the  knowledge  of  this  custom  by 
the  party.  One  of  the  most  common  grounds  for  inferring 
knowledge  in  the  parties,  is  the  fact  of  their  previous  similar 
dealings  with  each  other.  The  custom  might  be  so  perfectly 
ascertained  and  universal,  that  the  party's  actual  ignorance 
could  not  be  given  in  proof,  nor  assist  him  in  resisting  a  custom, 
If  one  sold  goods,  and  the  buyer  being  sued  for  the  price,  de- 
fended on  the  ground  of  a  custom  of  three  months'  credit,  the 
jury  might  be  instructed  that  the  defence  was  not  made  out 
unless  they  could  not  only  infer  from  the  evidence  the  existence 
of  the  custom,  but  a  knowledge  of  it  by  the  plaintiff.  But  if  the 
buyer  had  given  a  negotiable  note  at  three  months,  no  ignor- 
ance of  the  seller  would  enable  him  to  demand  payment  with- 
out grace,  even  where  the  days  of  grace  were  not  given  by 
statute.  In  such  a  case,  the  reason  of  the  law  of  custom — that 
the  parties  contracted  with  reference  to  it — seems  to  be  lost 
sight  of.  But  in  fact  the  custom  in  such  a  case  has  the  force  of 
law ;  an  ignorance  of  which  cannot  be  supposed,  and,  if  it  be 
proved,  it  neither  excuses  any  one,  nor  enlarges  his  rights. 

No  custom  can  be  proved,  or  permitted  to  influence  the  con- 
struction of  a  contract,  or  vary  the  rights  of  parties,  if  the  cus- 
tom itself  be  illegal.  For  this  would  be  to  permit  parties  to 
break  the  law  because  others  had  broken  it,  and  then  to  found 
the  rights  upon  their  own  wrong-doing. 

Neither  would  courts  sanction  a  custom  by  permitting  its 


ADMISSIBILITY  OF  INTRINSIC  EVIDENCE.  805 

operation  upon  the  rights  of  parties,  which  was  in  itself  wholly 
unreasonable.  In  relation  to  a  law,  properly  enacted,  this 
inquiry  cannot  be  made  in  a  country  where  the  judicial  and  leg- 
islative powers  are  properly  separated.  But  in  reference  to 
custom,  which  is  a  quasi  law,  and  has  often  the  effect  of  law, 
but  has  not  its  obligatory  power  over  the  court,  the  character 
of  the  custom  will  be  considered  ;  and  if  it  be  altogether  foolish, 
or  mischievous,  the  court  wir  not  regard  it ;  and  if  a  contract 
exist  which  only  such  a  custom  can  give  effect  to,  the  contract 
itself  will  be  declared  void. 

Lastly,  it  must  be  remembered  that  no  custom,  however  uni- 
versal, or  old,  or  known,  unless  it  has  actually  passed  into  law, 
has  any  force  over  parties  against  their  will.  Hence,  in  the 
interpretation  of  contracts,  it  is  an  established  rule,  that  no  cus- 
tom can  be  admitted  which  the  parties  have  seen  fit  expressly 
to  exclude.  Thus,  to  refer  again  to  the  custom  of  allowinsr 
grace  on  bills  and  notes  on  time,  there  is  no  doubt  that  the  par- 
ties may  agree  to  waive  this  ;  and  even  the  statutes  which  have 
made  this  custom  law,  permit  this  waiver.  And  not  only  is  a 
custom  inadmissible  which  the  parties  have  expressly  excluded, 
but  it  is  equally  so  if  the  parties  have  excluded  it  by  a  necessary 
implication  ;  as  by  providing  that  the  thing  which  the  custom 
affects  shall  be  done  in  a  different  way.  For  a  custom  can  no 
more  be  set  up  against  the  clear  intention  of  the  parties  than 
^.gainst  their  express  agreement  ;  and  no  usage  can  be  incorpo- 
rated into  a  contract  which  is  inconsistent  with  the  terms  of  the 
contract. 

Where  the  terms  of  a  contract  are  plain,  usage,  even 
under  that  very  contract,  cannot  be  permitted  to  affect  mate- 
rially the  construction  to  be  placed  upon  it ;  but  when  it  is 
ambiguous,  a  long-continued  usage  may  influence  the  judg- 
ment of  the  court,  by  showing  how  the  contract  was  understood 
by  the  parties  to  it. 

SECTION  V.  ■ 

CF   THE    ADMISSIBILITY     OF   EXTRINSIC     EVIDENCE    IN    THE    INTERPRETA- 
TION   OF    WRITTEN    CONTRACTS. 

It  is  very  common  for  parties  to  offer  evidence  external  to 
the  contract  in  aid  of  the  interpretation  of  its  language.     The 


c5o6  INTERPRETATION  OF  CONTRACTS. 

general  rule  is,  that  such  evidence  cannot  be  admitted  to  con 
tradict  or  vary  the  terms  of  a  valid  written  contract ;  or,  as  the 
rule  is  expressed  by  writers  on  the  Scotch  law,  "writing  cannot 
be  cut  down  or  taken  away  by  the  testimony  of  witnesses." 
The  rule  is  often  expressed  with  sufficient  exactness  for  ordi- 
nary purposes,  in  this  way  :  "  Evidence  may  be  admitted  to  ex- 
plain a  written  contract,  but  not  to  contradict  it."  There  are 
many  reasons  for  this  rule.  One  is,  the  general  preference  of 
the  law  for  written  evidence  over  unwritten  ;  or,  in  other  words, 
for  the  more  definite  and  certain  evidence  over  that  which  is 
less  so ;  a  preference  which  not  only  makes  written  evidence 
better  than  unwritten,  but  classifies  that  which  is  written.  For 
if  a  negotiation  be  conducted  in  writing,  and  even  if  there  be  a 
distinct  proposition  in  a  letter,  and  a  distinct  assent,  making  a 
contract,  and  then  the  parties  reduce  this  contract  to  writing, 
and  both  execute  the  instrument,  this  instrument  controls  the 
letters,  and  they  are  not  permitted  to  vary  the  force  and  effect 
of  the  instrument,  although  they  may  sometimes  be  of  use  in 
explaining  its  terms.  Another  is,  the  same  desire  to  prevent 
fraud  which  gave  rise  to  the  statute  of  frauds  ;  for  as  that 
statute  requires  that  certain  contracts  shall  be  in  writing,  so 
this  rule  refuses  to  permit  contracts  which  are  in  writing  to  be 
controlled  by  merely  oral  evidence.  But  the  principal  cause 
alleged  in  the  books  and  cases  is,  that  when  parties,  after  what- 
ever conversation  or  preparation,  at  last  reduce  their  agreement 
to  writing,  this  may  be  looked  upon  as  the  final  consummation 
of  their  negotiation,  and  the  exact  expression  of  their  purpose. 
And  all  of  their  earlier  agreements,  though  apparently  made  while 
it  all  lay  in  conversation,  which  is  not  how  incorporated  into 
their  written  contract,  may  be  considered  as  intentionally  re- 
jected. The  parties  write  the  contract  when  they  are  ready  to 
do  so,  for  the  very  purpose  of  including  all  that  they  have  finally 
agreed  upon,  and  excluding  everything  else,  and  making  this 
certain  and  permanent.  And  if  every  wTitten  contract  were 
held  subject  to  enlargement,  or  other  alteration,  according  to 
the  testimony  which  might  be  offered  on  one  side  or  the  other 
as  to  previous  intention,  or  collateral  facts,  it  would  obviously 
be  of  no  use  to  reduce  a  contract  to  writing,  or  to  attempt  to 
give  it  certainty  and  fixedness  in  any  way. 


ADMISSIBILITY  OF  IXTRINSIC  EITDEXCE.  So/ 

It  is  nevertheless  certain,  that  some  evidence  from  without 
must  be  admissible  in  the  explanation  or  interpretation  of  every 
contract.  If  the  agreement  be,  that  one  party  shall  convey  to 
the  other,  for  a  certain  price,  a  certain  parcel  of  land,  it  is  only 
by  extrinsic  evidence  that  the  persons  can  be  identified  who  claim 
or  are  alleged  to  be  parties,  and  that  the  parcel  of  land  can  be 
ascertained.  It  may  be  described  by  bounds,  but  the  question 
then  comes,  where  are  the  streets,  or  roads,  or  neighbors,  or 
monuments  referred  to  in  the  description  ;  and  it  may  sometimes 
happen  that  much  evidence  is  necessary  to  identify  these  per- 
sons or  things.  Hence,  we  may  say,  as  the  general  rule,  that 
as  to  ^^0.  pai  ties  or  the  subjcxt-niatter  of  a  contract,  extrinsic  evi- 
dence may  and  must  be  received  and  used  to  make  them  certain, 
if  necessary  for  that  purpose.  But  as  to  the  terms,  conditions, 
and  limitations  of  the  agreement,  the  written  contract  must 
speak  exclusively  for  itself.  Hence,  too,  a  false  description  of 
person  or  thing  has  no  effect  in  defeating  a  contract,  if  the  error 
can  be  distinctly  shown  and  perfectly  corrected,  by  other  mat- 
ter in  the  instrument. 

A  written  contract,  of  which  the  memorandum  satisfies  the 
statute  of  frauds,  is  open  to  evidence  to  show  that  certain  essen- 
tials of  the  actual  contract  are  not  in  the  memorandum,  if  the 
effect  of  the  evidence  is,  not  to  vary  the  written  contract,  but^ 
to  show  that  no  such  contract  was  ever  made. 

Recitals  in  an  instrument  may  sometimes  be  qualified  or  con- 
tradicted by  extrinsic  evidence ;  by  "  recitals  "  are  meant  the 
narrative  of  the  circumstances  or  purposes  which  have  induced 
the  parties  to  make  the  contract.  So  the  date  of  an  instrument, 
or  if  there  be  no  date,  'the  time  when  it  was  to  take  effect,  which 
may  be  other  than  the  day  of  delivery  ;  or  the  amount  of  the 
consideration  paid,  may  be  varied  by  testimony  ;  but  if  a  note 
given  for  land  is  sued,  the  promisor  cannot  show  in  defence  that 
the  deed  described  a  less  quantity  of  land  than  had  been  stipu- 
lated. And  an  instrument  may  be  shown  to  be  void  and  with, 
out  legal  existence  or  efficacy,  as  for  want  of  consideration,  or 
for  fraud,  or  duress,  or  any  incapacity  of  the  parties,  or  any 
illegality  in  the  agreement.  In  the  same  way,  extrinsic  evi 
dence  may  show  a  total  discharge  of  the  obligations  of  the  con 


8o8  INTERPRETATION  OF  CONTRACTS. 

tract ;  or  a  new  agreement  substituted  for  the  former,  which  it 
sets  aside ;  or  that  the  time  when,  or  the  place  where,  certain 
things  were  to  be  done,  had  been  changed  by  the  parties  ;  or 
that  a  new  contract,  which  was  additional  and  supplementary  to 
the  original  contract,  had  been  made,  or  that  damages  had  been 
waived,  or  that  a  new  consideration,  in  addition  to  the  one  . 
mentioned,  has  been  given,  if  it  be  not  adverse  to  that  named 
in  the  deed.  And  if  no  consideration  be  named,  one  may  be 
proved. 

We  have  already  said  that  a  receipt  for  money  is  peculiarly 
open  to  evidence.  It  is  only  prinid  facie  evidence  either  that 
the  sum  stated  has  been  paid,  or  that  any  sum  whatever  was 
paid.  It  is  in  fact  not  regarded  as  a  contract,  and  hardly  as  an 
instrument  at  all,  and  has  but  little  more  force  than  the  oral 
admission  of  the  party  receiving.  But  this  is  true  only  of  a  sim- 
ple .receipt.  It  often  happens  that  a  paper  which  contains  a 
receipt,  or  recites  the  receiving  of  money  or  of  goods,  contains 
also  terms,  conditions,  and  agreements,  or  assignments.  Such 
an  instrument,  as  to  everything  but  the  receipt,  is  no  more  to  be 
affected  by  extrinsic  evidence  than  if  it  did  not  contain  the 
receipt ;  but  as  to  the  receipt  itself,  it  may  be  varied  or  contra- 
dicted by  extrinsic  testimony,  in  the  same  manner  as  if  it  con- 
tained nothing  else. 

Lastly,  no  contract  will  be  enforced,  as  a  contract,  if  it  have 
no  plain  and  natural  or  legal  meaning,  by  itself;  and  if  admis- 
sible, extrinsic  evidence  can  only  show  that  the  intention  of  the 
parties  was  one  which  their  words  do  not  express.  But  the 
supposed  contract  being  set  aside  for  such  reasons  as  these, 
the  parties  will  be  remitted  to  their  original  rights  and  obliga- 
tions. 


HIS  TITLE  TO  HIS  FARM.  809 

CHAPTER   XLII. 
LEGAL  RIGHTS  AND  OBLIGATIONS    OF  FAHMERS. 


SECTION  I. 

HIS  TITLE  TO   HIS   FARM. 

This  right  may  arise  from  and  rest  upon  possession,  inherit- 
ance, purchase,  or  hiring. 

I.  Possession. — If  the  farmer  or  they  from  whom  he  inherits 
have  possessed  the  land  without  disturbance  or  adverse  claim  for 
a  sufficient  number  of  years,  it  is  his  by  what  is  called  prescrip- 
tion. The  meaning  of  this  is,  that  the  law  does  not  allow  any 
adverse  claimant  to  set  up  an  old  and  stale  claim  to  the  farm,  and 
on  the  strength  of  it  deprive  a  man  of  property  which  he  has 
held  in  peace  for  a  long  period.  This  law  was  founded  upon 
the  probability  that  they  who  have  held  quiet  possession  of  land 
for  a  long  time  must  have  held  it  by  right ;  and  that  no  one 
would  be  likely  to  lie  by  and  make  no  claim  to  the  land  if  he  had 
a  good  title  to  it.  Ages  ago,  the  period  required,  to  give  title  by 
mere  lapse  of  time  was  a  very  long  one.  Gradually  it  became 
shorter,  and  is  now  in  this  country  quite  short.  Exceptions  to 
the  rule  are  always  made,  in  favor  of  those  who  by  reason  of 
absence,  infancy,  or  imbecility  have  been  unable  to  assert  their 
claims — the  principle  being  that  no  one  should  lose  his  land 
by  suffering  another  to  possess  it  quietly  for  a  long  time  but  he 
who  could  have  made  claim,  and  was  therefore  properly  pun- 
ished for  his  neglect. 

In  Chapter  22,  on  limitations,  and  in  the  abstract  of  the 
statutes  of  limitations,  beginning  on  page  284,  the  reader  will 
find  stated  the  periods  of  time  within  which,  in  the  several 
States,  an  action  must  be  brought  to  recover  real  estate — that 
is,  land.  It  brought  afterwards,  the  lapse  of  time  is  a  sufficient 
defense,  unless  the  plaintiff  who  seeks  to  recover  the  land  can 
justify  his  delay  in  bringing  his  suit  by  showing  that  he  or  she 
was  an  infant,  or  absent  from  the  State,  or  imbecile,  or  a  married 
woman,  or  under  some  other  disability ;    and   that  he   or   she 


8 10    LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS. 

brought  his  or  her  action  within   the  prescribed  period,  if  that 
began  after  his  disabiHty  was  removed. 

2.  Inheritance. — In  this  country  there  is  not  only  an  entire 
absence  of  the  right  of  primogeniture,  but  no  other  difference 
between  the  inheritance  of  real  estate  or  land,  and  of  personal 
property  in  goods  and  chattels,  than  that  which  arises  necessa- 
rily from  the  difference  in  the  nature  of  these  two  kinds  of 
property.  We  retain,  generally,  the  phraseology  of  the  English 
/aw.  The  word  "  inheritance "  applies  in  law  only  to  real 
property,  and  the  statutes  by  which  it  is  determined  how  such 
property  passes  to  the  issue  or  relatives  of  the  deceased,  are 
commonly  called  statutes  of  inheritance.  Whereas  those  which 
determine  how  and  where  the  personal  property  shall  go  are  called 
statutes  of  distribution.  But  in  all  the  States  these  two  statutes 
are  nearly  alike ;  that  is  to  say,  the  persons  entitled  to  the  real 
estate  of  a  deceased  man  are  almost  always  those  to  whom 
*;he  personal  property  would  go  as  to  the  next  of  kin  to  the 
.ieceased. 

A  person  who  takes  a  farm  by  inheritance  (using  the  word  in 
its  common  meaning),  must  take  it  either  under  the  will  of  the 
deceased,  or  by  force  of  law  as  the  heir  of  the  deceased.  On 
this  subject  we  refer  to  what  we  have  said  in  our  chapters  on  wills 
and  on  executors  and  administrators. 

3.  Purchase. — In  this  country  land  can  only  be  transferred 
by  Deeds. 

If  a  man  makes  a  bargain  to  buy  a  farm  and  is  so  unwise  as 
to  take  possession  without  having  a  sufficient  deed  duly 
executed,  his  bargain  gives  him  no  title  to  his  farm,  which  still 
remains  the  property  of  the  man  who  agreed  to  sell  it.  But  if 
the  bargain  be  in  writing  and  sufficiently  distinct,  the  law  may 
help  him  and  compel  the  owner  to  carry  his  bargain  into  effect 
by  giving  a  sufficient  deed. 

The  wiser  way,  if  for  any  reason  the  parties  are  not  ready  to 
give  and  receive  a  deed,  is  for  the  intended  buyer  to  take  from 
the  intended  seller  a  bond  for  a  deed,  of  which  he  will  find 
several  forms.     See  forms  27,  28,  and  29,  in  this  book. 

For  offers  made  on  time,  see  the  third  section  of  the  sixth 
chapter. 


HIS  RIGHT  TO  HIS  FARM.  8l  I 

For  the  law  of  deeds  we  refer  to  our  chapter  on  deeds.  In 
that  chapter  will  also  be  found  what  it  is  most  important  to 
Know,  remember,  and  practice — that  is  the  legal  requirements 
concerning  the  signing,  sealing,  acknowledgment,  delivery,  and 
recording  of  deeds.  Ignorance  or  neglect  of  any  of  these 
matters  may  destroy  a  man's  title  to  his  farm  and  deprive  him 
of  it. 

It  is  now  so  common  to  sell  a  farm  at  auction  that  it  is  well 
to  give  some  of  the  rules  of  law  about  sales  at  auction, 

4.  Sales  of  Land  at  Auction. — Every  bid  by  any  one 
present  is  an  offer  by  him.  It  may  be  withdrawn  before  the 
hammer  falls  ;  but  if  not  withdrawn,  then  the  offer  is  accepted 
and  the  bargain  made. 

If  a  farm  be  sold  the  plan  or  description  offered  at  the  sale 
must  give  true  information,  or  the  purchaser  is  not  bound  to 
take  the  estate.  If  the  descriptions  are  written  or  printed  and 
circulated  among  the  bidders,  they  cannot  be  contradicted  by 
verbal  declarations  made  by  the  auctioneer  at  the  time  of  the 
sale. 

If  land  is  sold  in  several  lots,  and  each  is  bought  by  itself,  there 
is  a  separate  bargain  for  each  lot ;  and  therefore  if  the  seller  can 
make  good  title  to  only  one  or  more  of  the  lots,  the  buyer  must 
take  them  though  he  cannot  have  the  other  lots  he  bought ; 
unless  he  can  show  that  the  buying  of  the  whole  was  a  valid 
part  of  the  inducement  or  motive  for  buying  any,  and  that  the 
part  he  could  have  would  not  answer  his  purpose  unless  he  could 
have  the  other  lots. 

Whether  by-bidders  for  the  seller  authorize  a  purchaser  to 
abandon  a  sale  has  been  much  disputed.  Of  course  any  fraud- 
ulent act  of  the  seller  would  have  that  effect ;  but  it  seems  to 
be  law  that  by-bidding  is  not  necessarily  fraudulent,  if  the  seller 
wishes  only  to  avoid  sacrifice.  But  the  honest  way  would  be  to 
put  the  land  up  at  a  price.  And  if  the  seller  or  auctioneer 
declares  at  the  sale  that  there  is  no  by-bidding,  or  makes  any 
declaration  to  that  effect,  and  then  employs  by-bidding,  the 
buyer  is  not  bound  to  take  the  land. 

An  agreement  among  many  persons  that  one  should  bid  for 
all  is  not  necessarily  illegal. 


8 12     LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS 

An  auctioneer  of  real  or  personal  property  who  does  not  give 
the  name  of  the  owner  is  himself  liable  to  the  buyer  for  the 
completion  of  the  sale,  and  for  any  warranty  he  makes ;  and  so 
he  is  if  he  sold  and  warranted  without  authority.  But  if  he 
has  authority  from  the  owner  and  states  who  the  owner  is,  he 
puts  the  liability  for  the  sale  and  the  warranty  upon  the  owner. 

SECTION  II. 

WHAT  ONE  TAKES  BY  THE  DEED  OF  A  FARM 

I.  Boundaries  and  Descriptions. — The  first  question  ib 
what  land  does  he  take  ;  and  this  question  is  answered  by  the 
boundaries.  These  cannot  be  stated  too  carefully,  and  cases 
where  difficulties  and  law-suits  have  arisen  from  their  inaccu 
racy  or  insufficiency  are  very  frequent. 

One  rule  to  be  remembered  is,  that  evidence  of  what  the 
parties  meant  and  intended  cannot  be  used  to  contradict 
what  they  have  said  in  writing.  See  page  74.  This  rule  some- 
times works  great  injustice  ;  but  the  reason  of  it  is  obvious,  for 
if,  after  parties  had  agreed  upon  a  matter,  and  put  it  in  writing  in 
the  most  formal  manner,  either  of  them  could  put  the  writing 
aside  by  evidence  that  he  meant  something  else,  nobody  would 
be  safe  in  his  contracts  or  secure  in  his  rights. 

But  evidence  is  receivable  to  show  that  either  of  the  parties 
used  language  to  defraud  the  other ;  for  fraud  can  always  be 
exposed,  and  whenever  shown  gives  the  defrauded  party  the 
right  to  avoid  the  contract.  Words  and  conversation  about  the 
farm  amount  to  nothing  in  law. 

The  intending  seller  may  say  how  much  stock  it  will  feed,  or 
what  crops  it  will  produce,  and  if  he  deceives  the  buyer  this 
man  has  no  remedy,  for  he  must  judge  of  these  matters  for  him- 
self, or  get  disinterested  advice.  But  if  he  should  state  falsely 
and  fraudulently  that  the  farm  had  in  fact  fed  so  much  stock  or 
produced  such  crops,  the  deceived  buyer  would  have  his  remedy, 
and  could  avoid  the  sale  if  he  thought  fit. 

Evidence  is  always  admissible  to  show  what  the  contract  or 
instrument  means,  as  who  the  parties  are,  or  where  the  farm  or 
land  is.  The  rule  is,  that  evidence  cannot  cojitradict  but  may 
€xj)lain  a  written  contract.     If  a  deed  says  John  Smith  sells  the 


WHAT  0\E  TAKES  BY  THE  DEED  OF  A  FARM.     813 

{and.  evidence  cannot  show  that  it  was  Peter  Robinson  ;  but  if 
there  be  John  Smith  the  father  and  John  Smith  the  son,  it  can 
show  which  of  them  is  meant. 

So  the  boundaries  may  be  obscure  or  uncertain  ;  and  while 
evidence  cannot  put  new  boundaries  into  a  deed,  it  may  make 
those  which  are  there  certain.  So  boundaries  may  be  incon- 
sistent. The  farm  may  be  said  to  contain  so  many  acres,  and 
to  measure  five  hundred  rods  from  such  a  boundary  to  such  a 
boundary  in  a  northwest  direction.  But  there  may  be  no  bound- 
ary in  that  direction,  and  the  distance  from  one  bound  to  the 
other  may  be  four  hundred  and  six  hundred  rods,  in  a  north- 
northwest  direction,  and  the  farm  may  contain  more  or  fewer 
acres  than  the  description.  In  such  a  case  evidence  may  show, 
if  it  can  with  reasonable  certainty,  just  what  the  bounds  actually 
are,  as  certain  trees,  or  posts,  or  rocks.  And  if  the  boundaries 
are  made  certain  they  will  control  distances,  directions,  and  con- 
tents, unless  the  discrepancies  are  so  great  as  to  show  eithei 
fraud  on  one  part  or  the  other,  or  that  the  parties  labored 
under  some  mistake,  and  could  not  have  agreed  in  their  mindi 
one  to  sell  and  the  other  to  buy  the  same  farm  ;  for  this  agree 
ment  of  minds  is  in  law  the  very  essence  of  a  contract. 

If  the  number  of  acres  enters  into  the  description,  it  is  com 
mon  to  add,  "be  the  same  more  or  less."  This  guards  effect 
ually  against  any  inaccuracy.  But  without  it,  the  failure  in  the 
number  of  acres  would  not  avoid  the  deed,  unless  it  was  so  large 
as,  with  other  circumstances,  to  show  fraud.  If  there  be  ever 
so  much  fraud,  the  fraudulent  party  cannot  take  advantage  of 
it,  and  only  the  defrauded  party  can.  If  the  seller  says  the 
farm  contains  so  many  acres  when  he  knows  it  does  not,  and 
then  points  out  the  boundaries  accurately  and  truly,  the  buyer 
is  without  redress,  because  he  has  the  means  of  correcting  the 
misrepresentation. 

2.  Contents. — The  rule  of  law  is,  and  for  manv  centuries  has 
been,  that  whosoever  owns  land  owns  all  there  is  above  it  and 
all  there  is  below  it  ;  or  as  the  old  phrase  ran,  everything  up  to 
the  sky  and  everything  down  to  the  center. 

Of  course  all  buildings  and  everything  fairly  belonging  to  the 
buildings  go  with  the  farm.     But  then  comes  the  question,  what 


Sl4    LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS. 

does  belong  to  them  ?  The  answer  is  given  by  the  rules  of  law 
as  to  fixtures. 

3.  Fixtures. — They  are  everything  which  is  fixed  or  fastened 
to  the  land.  And  if  anything  be  fastened  to  the  land,  whatever 
is  fastened  to  that  thing  is  fastened  to  the  land.  Thus  :  A 
house  rests  on  a  stone  foundation  sunk  into  the  oround  ;  but  the 
doors  and  windows  of  the  house  are  fastened  to  the  house,  and 
therefore  they  are  fastened  to  the  land  ;  and  the  blinds  belong- 
ing to  the  windows  and  the  locks  and  keys  to  the  door,  though 
moveable  and  for  the  time  removed  from  them,  and  some  other 
things  of  like  kind  not  fastened  to  the  house,  are  fixtures,  and 
go  with  the  house  as  that  goes  with  the  land.  The  cases  are 
almost  innumerable  which  have  risen  upon  the  question  whether 
this  or  that  thing- is  a  fixture.  Before  attempting  to  show  how 
this  question  has  been  answered,  it  may  be  well  to  state  that 
many  things  are  fixtures  when  a  house  is  sold,  so  that  the  seller 
of  the  house  cannot  retain  them,  which  would  not  be  fixtures  to 
the  hirer  of  the  house  if  he  put  them  in  ;  and  when  his  lease 
expired  he  could,  therefore,  take  them  away  with  him. 

In  general,  whatever  the  ow^ner  of  the  farm  fastens  to  the 
ground  or  to  a  building,  or  uses  constantly  with  it  as  an  appur- 
tenance to  it,  is  a  fixture,  and  he  sells  it  when  he  sells  the  farm. 
But  whatever  a  hirer  buys  or  makes  to  use  with  the  farm,  and 
fastens  to  the  ground  or  building,  if  he  fastens  it  in  such  a  way 
that  he  can  remove  it  and  leave  the  land  or  building  in  as  good 
order  and  condition  as  before,  he  may  remove  and  take  away. 

Of  course  the  parties,  whether  buyer  or  seller,  or  hirer  or 
lessor,  may  make  what  bargains  they  like  about  any  fixture. 
The  law  of  fixtures  comes  in  only  where  they  make  no  bargain. 

A.  Things  held  not  to  be  removable  by  an  outgoing  tena7tt. — 
Barns  and  sheds  fixed  in  the  ground,  statues  erected  on  a  per- 
manent foundation  as  an  ornament  to  the  ground,  chimney- 
piece  not  ornamental  if  it  be  fastened  to  the  wall,  closets  affixed 
to  the  house,  conservatory  substantially  affixed,  fuel-house, 
hearths,  hedges,  pigeon-house,  pump-house,  wagon-house,  box- 
borders  not  belonging  to  a  gardener  by  trade,  fruit  trees  not 
belonging  to  a  nurseryman.  These  last  two  illustrate  a  rule  of 
much  force  and  frequent  application,  namely  :  that  a  tenant  of 


WHAT  ONE  TAKES  BV  THE  DEED  OF  A  FARM.     815 

land  which  he  hires  to  carry  on  a  business  there  may  add 
things  as  a  part  of  his  business  and  take  them  away,  which 
things  he  would  be  obliged  to  leave  if  they  were  not  con 
nected  with  his  business. 

B.  Things  held  to  be  removable  by  an  oiitgoijig  tenant. — 
Barns,  stables,  out-houses  and  sheds  resting  on  logs  or  rollers, 
because  this  showed  them  to  be  affixed  to  the  land  only  tem- 
porarily. Ornamental  chimney-pieces,  fire-frame,  furnaces,  cook- 
ing stove,  gates,  looking-glasses,  trade  fixtures  generally. 

There  are  two  rules  to  be  remembered,  of  almost  universal 
force.  One  is  that  the  outgoing  tenant  who  has  attached  to  the 
land  or  placed  upon  the  premises  anything  which  he  cannot 
remove  and  leave  the  buildings  or  the  land  in  as  good  condition 
as  before,  must  leave  that  thing  behind  him. 

The  other  is  that  an  owner  of  land  who  attaches  to  his  land 
or  building  almost  any  of  the  things  which  a  tenant  may 
remove,  when  he  sells  the  land  or  building  sells  that  thing, 
unless  he  expressly  reserves  a  right  to  remove  it. 

4.  Manure. — If  a  man  sells  his  farm  he  sells  with  the  farm 
all  the  manure  upon  it,  whether  it  be  spread  on  the  fields  or  is 
heaped  up  in  the  barn-yard  or  cellar. 

'If  he  Ists  his  farm  to  another,  the  hirer  takes  the  manure, 
unless  the  lessor  reserves  the  right  to  take  it  away,  and  when 
the  lease  expires  and  the  land  returns  to  the  owner,  the  manure 
goes  with  the  land. 

The  owner  of  a  farm  may  undoubtedly,  before  he  sells  it, 
remove  the  manure  or  sell  it  separately,  if  he  does  this  openly 
and  not  secretly,  and  not  in  such  a  way  as  to  deceive  and  cheat 
the  buyer  of  the  farm.  What  the  right  of  the  outgoing  tenant 
is  may  not  be  so  certain.  But  it  may  now  be  considered  as  the 
law  of  this  country  that  a  tenant  who  has  occupied  a  farm  on  a 
lease,  and  whose  lease  is  about  to  expire,  cannot  sell  or  remove 
the  manure,  but  it  goes  with  the  farm  to  the  owner. 

5.  Rocks,  Stones,  Soil. — These  belong  wholly  to  the  owner 
ot  the  land,  and  whoever  buys  it  buys  an  absolute  right  to  them. 
No  man  can  take  away  a  pebble  or  a  spoonful  of  earth  without  a 
breach  of  the  law.  This  is  obvious,  for  if  a  man  could  take  one 
spoonful  he  could  take  many,  and  that   might  be  a  cartload. 


8i6     LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS. 

And  if  he  might  take  a  pebble,  he  mighttake  the  rocks.     These 
must  belong  to  the  owner  of  the  land. 

6.  Adjoining  Roads. — If  one's  farm  is  bounded  by  a  road, 
and  there  are  no  restrictions  or  reservations  in  the  deeds  through 
which  he  derives  title,  he  owns  to  the  middle  of  the  road,  sub- 
ject only  to  the  right  of  the  public  to  use  it  as  a  road,  or,  as  it  is 
called,  their  right  of  way  ;  subject  also  to  whatever  rights  the 
law  of  the  State  gives  to  surveyors  of  roads  and  highways,  or 
other  officers.  Thus,  he  owns  the  grass  on  the  road,  and  may 
take  stone  or  gravel  from  the  road  as  freely  as  from  any  part  of 
the  farm,  provided  he  fills  the  vacant  places  with  equally  good 
road  material  and  leaves  the  road  in  as  good  condition  as  before. 

When  the  owner  of  a  farm  owns  to  the  middle  of  the  adjoin- 
ing road  he  has  all  the  rights  to  the  land  consistent  with  the 
public  right  of  way.  He  may  plant  trees  on  the  sidewalk  if  per 
mitted  by  proper  authority,  or  unless  they  obstruct  the  use 
of  the  road,  and  they  remain  his  property.  Officers  charged 
with  the  care  of  roads  may  remove  them,  but  individuals  are^ 
liable  for  their  wanton  destruction.  If  one  fastens  his  horse  to 
the  trees,  and  the  horse  injures  the  trees,  the  man  who  tied  hiro 
there  is  liable. 

The  owner  of  a  farm  cannot  put  any  permanent  structure  on 
an  adjoining  road,  nor  keep  his  carts  and  sleds  there  nor  pile 
his  wood  there,  and  if  he  does  he  is  liable  to  anyone  who  suf- 
fers an  injury  from  running  against  them  while  traveling  over 
the  highway. 

7.  Trees. — Of  course  the  owner  of  a  farm  buys  and  owns 
all  the  trees  upon  it  if  at  the  time  of  the  sale  they  were 
blown  down  and  lie  on  the  ground,  but  not  if  they  have  been 
cut  for  sale  or  fuel.  There  have  been  some  cases  in  courts 
turning  upon  the  question  what  are  his  rights  if  his  trees  hang 
over  his  neighbor's  fields,  and  what  are  his  neighbor's  rights. 

In  the  first  place  his  neighbor  owns  ]iis  land  absolutely,  and 
all  that  is  above  and  below  it.  Therefore  he  may  cut  away 
every  bough  and  twig  which  comes  over  his  land.  And  he 
may  dig  down  close  to  the  line  of  his  land  and  cut  away  every 
root  that  comes  into  his  land.  But  how  is  it  as  to  the  fruit 
which  grows  upon  their  branches  .-'      This  fruit,  like  the  branches 


TRESPASSLYG  OX  THE  FARM.  817 

themselves,  belongs  to  the  owner  of  the  tree.  His  neighbor 
may  cut  the  branches  away,  and  they  may  fall  on  his  ground, 
but  he  has  no  right  to  them.  The  original  owner  loses  no  prop- 
erty in  them,  but  has  a  right  to  enter  peaceably  upon  the  land 
where  they  lie  and  take  the  fallen  boughs  away.  So  he  retains 
his  property  in  the  fruit,  and  may  enter  upon  the  land  where  it 
lies,  and  gather  it  and  take  it  away.  Such,  we  think,  are  the 
conclusions  to  be  derived  from  the  best  adjudication  and  the 
best  reasoning  on  the  subject. 

SECTION  III. 

TRESPASSING   ON   THE    FARM. 

1.  Who  is  a  Trespasser. — The  right  of  an  owner  of  a  farm 
to  its  entire  possession  is  so  absolute  in  law  that  nobody  can 
set  foot  upon  it,  by  day  or  night,  against  the  owner's  will,  with- 
out committing  what  the  law  calls  a  trespass,  or  a  breach  of  the 
law  for  which  he  is  answerable.  A  man's  house,  says  the  old 
maxim,  is  his  castle,  as  effectually  protected  by  the  law  as  a 
castle  by  its  walls  and  battlements.  If  a  stranger  goes  at 
proper  hours  only  upon  the  roads  and  paths  of  the  farm, 
although  they  are  not  public,  they  are  so  far  open  that  one  who 
walks  on  them  without  evil  design  and  without  doing  harm,  and 
without  express  prohibition  of  some  kind,  would  be  held  to- 
have  in  some  sort  the  owner's  permission.  But  one  who  walk.? 
on  the  grass,  or  perhaps  anywhere  but  on  the  roads  or  paths,  is  a 
trespasser,  if  without  express  permission. 

2.  Of  the  right  of  the  Farmer  to  order  a  Trespasser 
OFF  FROM  HIS  Land.  His  right  to  do  this  is  unquestionable. 
But  suppose  that  he  gives  such  an  order  and  the  trespasser  will 
not  go.  What  can  the  farmer,  do .''  Then  the  owner  of  the 
farm,  or  of  any  lot  of  land,  however  small,  has  an  equally 
unquestionable  right  to  put  him  off  forcibly  if  the  trespasser 
will  not  go  peaceably.  But  how  much  force  may  the  owner 
use  .•*  The  answer  to  thrs  question  is  distinct  and  certain 
so  far  as  the  law  goes,  but  there  may  be  some  difficulty  in 
the  actual  application  of  the  rule.  The  rule  of  law  is,  that  the 
owner  of  the  land  may,  in  order  to  expell  the  trespasser,  "  put 
his  hands  gently  upon  him."      But   then  the  question  comes 

52 


8l8    LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS. 

what  is  "gently."  This  question  has  been  through  English 
courts  for  centuries.  They  have  come  to  a  conclusion  which 
the  American  courts  generally  adopt.  This  conclusion  is  that 
the  owner  may  use  whatever  force  is  necessary  to  expel  the 
trespasser,  provided  on  the  one  hand  that  he  does  him  no  griev- 
ous bodily  injury,  and  on  the  other  that  he  uses  no  more  force 
than  the  trespasser  makes  necessary. 

For  example  :  A  goes  into  B's  house,  or  barn,  or  on  his  land, 
and  persists  in  remaining  there,  although  B  orders  him  away. 
B  may  lay  hold  of  him,  may  summon  help,  and  with  as  much 
help  as  he  needs  seize  him,  and  if  need  be  bind  him  hand  and 
foot,  carry  him  bodily  off  his  premises,  and  then  unbind  him. 
Always  on  this  condition,  that  he  uses  no  more  violence  than  is 
lequisite  to  remove  him,  and  that  he  avoids  such  measures  as 
■v.'ould  do  serious  or  permanent  harm  or  endanger  life  or  limb. 
But  while  B  does  only  what  is  needed  to  remove  A,  and  does 
this  with  sufficient  care,  if  A  by  some  accident  is  injured,  B  is 
not  responsible,  for  it  is  A's  own  fault. 

SECTION  IV. 

FARM-WAYS. 

Of  course  an  owner  of  a  farm  may  make  or  unmake 
his  own  roads  or  ways  at  his  pleasure.  His  neighbor  has  noth- 
ing to  do  with  them,  unless  the  owner  give  him  leave  to  use 
them,  and  a  right  of  way  must  be  conveyed  by  a  deed,  in  like 
manner  as  the  land  itself.  If,  indeed,  his  neighbor  claims  a 
right  to  use  one  of  them,  and  under  that  claim  uses  it  as  he 
would  his  own  for  more  than  twenty  years  without  the  permis- 
sion of  the  owner,  such  neighbor  might  acquire  a  right  of  way 
by  prescription.  And  if  such  rights  of  way  become  attached 
to  a  farm  by  prescription,  whoever  buys  a  farm  buys  with  it 
those  rights  of  way.     But  such  a  case  would  not  often  occur. 

If  a  farmer  sells  a  lot  surrounded  by  the  farm,  he  sells  with 
it  a  right  to  pass  to  and  from  the  lot,  But  the  seller  may  mark 
out  a  sufficient  passage  to  and  from  the  land,  and  over  that  the 
buyer  must  go.  And  when  a  public  highway  is  laid  out  which 
gives  access  to  the  lot,  the  buyer  of  it  loses  his  right  of  passage 
over  the  seller's  land,  because  this  right  is  no  longer  necessary 
to  his  use  and  occupation  of  the  lot. 


WATER  RIGHTS.— FIRE. 


819 


SECTION  V. 

WATER   RIGHTS. 

The  owner  of  a  farm  owns  the  ponds  upon  his  farm  and  the 
running  streams,  so  far  as  to  make  a  reasonable  use  of  them 
for  his  land,  stock,  or  house.  He  may  change  the  course  of  a 
stream  on  his  own  land,  but  he  must  not  divert  it  from  his 
neighbor's  land,  nor  can  he  lead  it  into  his  neighbor's  land  else- 
where than  in  its  natural  channel.  He  may  dam  it  up  so  as  to 
make  ponds  on  his  own  land,  but  cannot  overflow  his  neighbor's 
land  except  for  mill  purposes  under  the  local  laws  regulating 
such  use  of  the  water.  If  he  does,  his  neighbor  may  enter  his 
farm  and  remove  the  dam  so  far  as  to  relieve  his  land  from  the 
overflow  ;  and  if  the  stream  be  obstructed  by  stones  or  rubbish 
on  his  neighbor's  farm,  he  may  go  on  his  neighbor's  land  to 
remove  the  obstruction,  and  may  put  this  on  the  banks  of  the 
stream.  He  may  dig  anywhere  on  his  own  land,  even  if  he  cuts 
off  the  springs  which  water  his  neighbor's  land  or  supply  his  well 
or  pond,  for  his  neighbor  has  no  property  or  legal  interest  in  the 
waters  which  flow  or  stand  below  the  surface  of  the  land. 

As  the  owner  of  a  farm  owns  a  stream  or  brook  which  runs 
through  his  farm,  so  if  a  farm  bounds  on  a  running  stream 
that  is  not  navigable  he  owns  to  what  is  called  the  thread  of 
the  stream,  which  is  the  middle  of  the  main  current,  and  may  be 
on  one  side  or  the  other  of  the  middle  of  the  stream. 

SECTION  VI. 

FIRE. 

There  is  a  principle  of  law  applicable  in  a  reasonable  way  to 
everyone,  and  to  the  ownership  and  use  of  all  property.  It  is 
this  :  "A  man  must  use  what  is  his  own  so  as  not  to  injure  his 
neighbor."  This  rule  applies  distinctly  to  a  man's  right  to  kindle 
fire  on  his  land.  A  man  who  owns  any  land,  much  or  little,  may 
kindle  what  fire  he  will  upon  it  and  burn  what  he  will  in  the 
fire.  But  he  is  always  responsible  for  the  damage  his  fire  does 
if  he  were  negligent  in  any  way  about  it.  It  may  be  that  his 
neighbor's  fences  or  buildings  are  so  near  him  that  he  could  not 
build  a  fire  upon  any  part  of  his  land  without  endangering  his 


820  LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS. 

neighbor's  property.  Then  it  might  be  negligent  in  him  to 
build  a  fire  to  burn  brush  anywhere,  or  he  may  build  it  of  par- 
ticularly inflammable  and  therefore  dangerous  material,  or  in  a 
very  dry  time,  or  in  a  high  wind,  or  too  large  a  fire,  or  without 
watching  it  with  the  care  that  such  a  fire  required  to  be  reason- 
ably safe.  If  he  were  sued  for  the  damage  it  would  be  for  a  jury 
to  determine,  under  the  direction  of  the  court  as  to  the  law, 
whether  he  was  liable,  and  if  so  for  how  much.  The  court 
would  instruct  the  jury  that  the  builder  of  the  fire  was  not  liable 
if  he  built  it  on  his  own  land,  unless  there  were  circumstances  of 
some  kind  which  satisfied  them  that  he  had  been  in  some  way 
negligent,  and  that  the  damage  was  directly  due  to  his  negli- 
gence. Then  would  come  the  question,  which  is  often  very  diffi- 
cult because  it  must  be  answered  by  a  well  established  rule, 
applicable  not  only  to  fire  but  in  a  great  variety  of  cases,  bul 
which  it  is  often  very  difficult  to  apply.  This  rule  is  that  a  wrong 
doer  is  always  answerable  for  all  the  immediate  or  direet  effects 
of  h^s  wrong-doing,  but  not  further.  If  we  apply  this  rule  to  ci 
case  of  fire,  the  man  who  built  one  or  tended  one  negligently 
would  be  answerable  to  his  neighbor  not  only  for  a  shed  that, 
caught,  but  for  his  dwelling-house,  though  that  stood  at  some  dis- 
tance, if  it  caught  fire  from  the  shed.  But  he  would  not  bi 
answerable  to  a  more  distant  person  whose  house  caught  fire  frora 
the  first  house.  The'reason  of  the  rule  is  obvious.  If  the  builde " 
of  the  fire  were  answerable  for  the  second  house,  why  not  for  tbv 
third  which  caught  from  the  second,  and  why  not  for  a  wholn 
city  .''  It  is  plain  that  there  must  be  some  limit  to  a  wrong-doer'n 
liability  for  the  consequences  of  his  wTong-doing.  It  must  stop 
somewhere.  If  the  man  whose  house  or  store  is  burned  down 
becomes  thereby  insolvent,  no  one  would  say  that  the  man  who 
set  the  fire,  however  willfully  or  negligently,  should  be  answer- 
able to  this  insolvent's  creditors  for  what  they  lose  by  him.  As 
this  man's  liability  must  stop  somewhere,  the  law  says  it  stops 
with  the  direct  and  immediate  consequences  of  his  wrong-doing, 
leaving  it  to  a  court  and  jury  to  determine  what  damages  were 
direct  and  immediate,  and  what  were  only  remote  and  conse- 
quential. 

Farm  buildings  are  sometimes  destroyed  by  fire  caught  from 


GAME  ANIMALS.  821 

railroad  cars.  The  railroad  companies  are  of  course  liable  for 
all  damage  caused  thereby  if  the  fire  arose  from  any  fault  of 
theirs  or  of  persons  employed  by  them.  It  would  be  the  fault 
of  the  companies  if  they  neglected  to  use  known  and  entirely 
practicable  precautions.  Whether  they  would  be  answerable  if 
wholly  free  from  negligence  and  default  cannot  be  answered 
from  any  ascertained  and  uniform  law.  Generally  we  think  they 
would  be  answerable.  In  some  States  this  is  provided  by  stat- 
ute. 

SECTION  VII. 

GAME   ANIMALS. 

We  have  in  this  country  no  game  laws  but  such  as  are 
intended  to  preserve  from  wasteful  destruction  animals  valuable 
f;)r  food  or  otherwise  useful.  It  is  a  pity  we  have  not  more  laws 
for  this  purpose,  and  that  they  are  not  better  observed.  Game 
animals  which  existed  in  great  abundance  almost  everywhere  in 
this  country  some  years  ago  are  now  scarce  everywhere,  and  in 
some  regions  destroyed,  by  the  indiscriminate  slaughter  which 
has  long  prevailed. 

A  wild  animal,  whether  beast,  bird,  or  fish,  belongs  to  nobody, 
and  everyone  may  catch  or  kill  it  who  can.  But  here  again 
comes  this  question  of  the  right  to  go  upon  the  land.  The 
wild  birds  on  my  farm  are  not  mine.  I  have  no  better  right  to 
shoot  or  snare  them  than  another.  But  no  man  has  any  more 
"ight  to  come  on  my  land  without  my  permission,  to  snare  or 
shoot  them,  than  for  any  other  purpose.  That  is  to  say,  he  has 
no  right  at  all.  If  a  man  stands  in  a  road  adjoining  my  farnf 
and  shoots  a  bird  which  is  coming  on  my  land  I  cannot  say  that 
he  does  me  any  wrong.  But  if  the  bird  falls  over  the  line  he 
has  no  right  to  step  a  foot  on  my  land  to  get  the  bird,  and  if  he 
does  so  he  is  a  trespasser. 

It  is  common  in  some  parts  of  our  country  to  see  signboards 
set  up  on  the  roadside,  giving  notice  "  no  shooting  allowed  on 
these  premises."  The  only  practical  meaning  or  effect  of  such 
notices  is,  that  while  one  who  walks  peacefully  over  the  land 
will  not  be  prosecuted,  one  who  shoots  upon  the  land  will  be. 
But  he  cannot  be  prosecuted  for  shooting  there  or  for  killing 
wild  animals  there,    but  for   being  there    without    leave,  that 


822     LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS. 

is,  for  trespassing  on  tlic  land.  So  the  owner  of  the  farm  does 
not  own  the  fish  in  his  ponds  or  streams  until  he  catches  them, 
but  no  stranger  has  any  right  to  come  over  his  land  to  his 
grounds.  If  such  ponds  or  streams  reach  a  highway  any  man 
may  stand  in  the  highway  and  fish  for  them. 

An  animal  that  was  originally  wild,  after  it  is  caught  and 
tamed  is,  with  its  progeny,  as  much  property  as  a  domestic  ani- 
mal. 

SECTION  VIII. 

DOMESTIC  ANIMALS. 

They  are  as  much  the  property  of  their  owner  as  anything 
else  which  he  owns.  A  farmer  has  certain  rights  to  them  and 
certain  liabilities  for  them. 

No  one  has  a  right  to  kill  or  injure  them.  If  his  neighbor's 
cattle  trespass  on  his  land  he  may  impound  tJian,  being  very 
careful  to  follow  exactly  the  requirements  of  the  law,  for  his 
ignorance  or  carelessness  here  may  get  him  into  trouble.  Per- 
haps the  difficulty  or  danger  of  making  use  of  a  remedy  which 
may  so  easily  be  mistaken  is  one  cause  why  impounding  is  not 
now  so  often  resorted  to  as  formerly.  But  the  farmer  whose  land 
cattle  trespass  on  may  turn  them  into  the  road  to  go  where  they 
will.  A  kind  regard  for  his  neighbor  would  prompt  him  to  give 
his  neighbor  such  information  as  would  enable  him  to  recover  his 
cattle,  unless,  indeed,  they  were  notoriously  breachy  and  theii' 
owner  had  been  warned  often  enough.  But  one  who  turns 
them  from  his  own  land  into  the  road  is  not  bound  to  give  this 
notice.  For  everyone  who  owns  cattle  is  bound  to  keep  them 
at  home  or  suffer  the  consequences. 

So  it  would  be  as  to  sheep,  goats,  swine,  etc.  As  to  hens, 
they  cannot  be  impounded.  Of  course  they  can  be  driven 
away,  but  they  must  not  be  shot,  even  if  their  dead  bodies  were 
returned  to  their  owners.  It  may  be  doubted,  however,  whether 
a  jury — who  determine  all  questions  of  damages  in  actions  of 
trespass — would  give  much  damage  if  their  owner,  who  was  in 
the  habit  of  letting  them  get  their  food  in  his  neighbor's  gar- 
den, brought  an  action  when  their  dead  bodies  were  brought  to 
him. 

The    owner   of    domestic    animals    is    liable    for   any    dam- 


SALE  WITH  WARRANTY  OF  ANIMALS,  SEEDS,  ETC.     §23 

age  they  cause,  and  one  whose  fields  they  break  into  may  sue 
[or  the  harm  they  do. 

If  he  turns  his  oxen  or  other  animals  loose  into  the  public 
highway,  and  there  they  injure  anyone  in  person  or  property,  he 
is  answerable.  Nor  is  it  any  defense  that  he  did  not  know  that 
they  were  particularly  dangerous  in  disposition,  nor  is  it  any 
defense  that  the  animals  were  not  so,  because  he  ought  to  have 
kept  them  at  home. 

Whether  this  applies  to  hens  the  law  has  not  said  that  we 
know  of,  but  it  has  said  so  very  decidedly  as  to  all  four-footed 
animals,  including  one  of  the  most  troublesome — dogs.  As  to 
other  animals  it  is  a  general  rule  that  the  owner  of  an  animal 
that  is  kept  at  home  and  there  injures  a  person,  is  not  liable 
unless  it  can  be  shown  that  he  had  good  reason  to  know  that  his 
animal  was  mischievous  and  should  be  kept  in  such  a  way  that 
he  would  be  harmless.  But  all  dogs  are  mischievous  by  their 
very  nature  and  their  owner  is  liable  for  any  injury  they  do  and 
its  direct  consequences.  Anyone  may  kill  any  dog  who  runs 
at  him  in  the  public  highway  or  on  his  own  land  in  a  threaten- 
ing way,  or  if  he  is  wounding  or  chasing  cattle  or  sheep  in  his 
own  pastures.  In  States  requiring  that  dogs  should  be  licensed, 
if  they  are  not  licensed  they  are  outlawed,  and  may  be  killed 
anywhere  by  any  person  who  is  where  he  has  a  right  to  be. 

SECTION  IX. 

SALE  WITH   WARRANTY   OF   ANIMALS,   OF   SEEDS,   AND  OF   FERTILIZERS. 

In  our  chapter  on  sales,  section  4,  we  treat  of  sales  with  war- 
ranty. We  would  add  here  some  statements  of  the  law  which 
have  an  especial  reference  to  farmers. 

I.  Of  Animals. — Farmers  often  buy  and  often  sell  animals, 
and  it  is  important  to  know  when  the  sale  is  with  war- 
ranty and  v.dien  it  is  not.  This  is  sometimes  a  difficult 
question.  If  the  word  warranty  is  used  there  is  no  question. 
But  this  word  is  not  essential,  and  if  it  is  not  used  there  may 
still  be  a  question  whether  there  is  a  warranty.  There  is  one 
rule  stated  in  our  chapter  on  sales  of  frequent  importance.  It 
is  that  if  any  thing  be  bought  for  a  special  purpose  and  this 
purpose  is  made  known  to  the  seller,  it  is  considered  in  law 


824    ^^'^^^  RIGHTS  AND  OBLIGA  TIONS  OF  FARMERS. 

that  the  thing  is  sold  with  a  warranty  that  it  is  fit  for  that 
purpose.  This  rule  has  been  applied  to  the  sale  of  a  horse 
without  express  warranty. 

Mere  statements  or  declarations  in  circulars  or  advertise- 
ments, or  those  made  in  the  course  of  conversation,  would  not 
amount  to  a  warranty  even  if  the  buyer  relied  upon  them 
and  was  deceived  by  them.  But  the  law  seeks  to  check  the 
fraud  which  is  often  perpetrated  in  this  way  by  the  rule  that,  if 
the  representations  were  made  in  the  negotiation  for  the  sale  and 
formed  a  part  of  it,  if  they  were  intended  to  cause  the  sale  and 
did  help  to  cause  it,  then  these  representations  would  be  a  war- 
ranty in  law  with  all  the  effects  of  a  warranty,  even  if  the  seller 
made  them  honestly. 

The  warranty  may  be  limited  either  as  to  its  application  or 
.\s  to  time.  P^or  example,  a  horse  may  be  sold  with  warranty 
against  lanieness  or  against  glanders,  and  then  there  would  be 
MO  warranty  against  anything  else.  Or  he  may  be  spld  with 
warranty  to  last  only  twenty-four  hours,  as  is  frequently  said  at 
sales  of  horses  by  auction.  Then  the  horse  must  be  returned 
for  unsoundness  or  any  other  defect,  or  a  claim  be  made  for 
a  breach  of  warranty  within  twenty-four  hours  after  the  sale. 

2.  Of  Seeds. — Not  only  farmers  but  everyone  who  has 
a  lot  of  ground  no  bigger  than  a  table-cloth,  or  even  a 
dozen  flower  pots  in  which  he  tries  to  grow  flowers  or  fruit, 
knows  what  an  annoyance  it  is  to  find  the  seeds  he  bought  and 
sowed  different  from  what  they  were  bought  for,  or  lifeless  or 
worthless,  and  that  season's  cultivation  lost.  Only  a  farmer 
knows  the  extent  of  the  loss  which  he  may  suffer  from  this 
cause.  And  here  the  law  comes  to  his  aid,  and  if  farmers  gen- 
erally knew  the  remedy  in  their  power  and  applied  it  generally, 
it  might  be  hoped  that  this  fraud  might  be  lessened  or  punished. 
The  rule  that  anything  sold  for  a  special  purpose  is  sold  with  a 
warranty  that  it  is  fit  for  that  purpose  applies  here.  And  it  has 
been  decided  in  some  of  our  States,  and  we  think  would  now  be 
in  all  of  them,  that  if  a  buyer  asks  a  seller  for  seed  of  a  partic- 
ular sort  or  variety  and  he  sells  him  seed  as  good  seed  of  that 
particular  sort  or  variety,  and  it  turns  out  to  be  not  of  that  sort 
or  variety  but  of  some  other,  or  dead  and  worthless,  the  sellei 


HIRING  OF  HELP.  825 

Is  liable  to  the  buyer  not  merely  to  the  extent  of  the  price  paid 
for  the  seed,  but  for  all  the  direct  damage  which  he  may  have 
suffered  therefrom,  as  the  cost  of  preparing  the  field  for  the 
seed  or  the  difference  in  value  between  the  crop  which  he  raised 
and  the  crop  which  would,  with  reasonable  probability,  have 
been  raised  upon  the  field  if  the  seed  sown  had  been  what  it 
was  sold  for.  And  the  seller  will  be  thus  liable  without  any 
express  warranty,  even  if  he  had  been  honest  and  had  bought 
the  seed  as  that  which  he  sold  it  for,  and  believed  it  to  be 
that,  and  the  fraud  or  mistake  was  not  his  own  but  the  man's 
from  whom  he  bought  it. 

We  have  no  doubt  this  rule  would  be  applied  in  the  same 
way  where  one  who  bought  young  grafted  fruit-trees  as  of  a 
jiarticular  variety,  and  they  were  sold  expressly  as  such,  was 
tleceived  and  injured  in  a  similar  way. 

3.  Of  Fertilizers. — A  great  deal  of  fraud  has  been  practiced 

ia  the  sale  of  fertilizers.     This  is  now  much  diminished  by  the 

better   knowledge   of   the    subject   possessed   by  farmers   and 

gardeners,  and    also    by    the    laws  of  some  of  the  States.     It 

Avould  always  be  safer  for  the  buyer  to  insist  on  a  warranty. 

]3ut  this  should  not  be  a  warranty  of  the  general  quality  and 

character  of  the  article,  for  such  a  warranty  would  be  of  little 

l)ractical  use  except  in  extreme  cases.     The  warranty  should 

be  as  to  the  ingredients  of  which  the  article  consists,  and  as  to 

the  percentage  quantity  of  these.     If  it  be  a  chemical  fertilizer 

this  is  easily  ascertained  by  a  chemist.     The  most  essential  of 

these  ingredients  are  phosphorus,  nitrogen,  and  potash.     These 

elements   exist  in   artificial    fertilizers    under    different    forms. 

When  the  amount  of  each  of  them  in  a  hundred  w'eight  of  the 

article  is  known  to  the  buyer,  it  is  easy  for  him   to  acquire  the 

knowledge  necessary  to  judge  of  the  efficacy  and  value  of  the 

fertilizer. 

SECTION  X. 

HIRING   OF  HELP. 

I.  Rights  and  Duties  of  Help. — In  England  the  law  of  mas- 
ter and  servant  some  generations  ago  was  strict,  nor  has  it  lost 
all  this  character  yet.  Our  fathers  brought  over  to  this  country 
much  of  this  law,  but  it  has  entirely  lost  all  its  force  in  all  our 


826     LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS. 

States.  Now  the  relation  of  the  hirer  and  the  hired  is  purely 
one  of  contract.  The  hired  man  agrees  to  sell  so  much  of  his 
time,  labor,  or  skill  to  the  hirer,  and  the  hirer  agrees  to  pay  so 
much  money  for  what  he  buys.  It  is  a  contract  of  help  and  of 
payment  for  help,  and  both  parties  are  held  to  their  contract, 
and  neither  beyond  it. 

In  the  first  place,  both  parties  may  make  just  such  a  bargain 
as  they  like.  They  may  make  a  complete  bargain  concerning 
all  items,  or  a  partial  one,  or  none  at  all. 

In  the  next  place,  if  a  man  works  for  a  farmer  with  a  partial 
bargain,  or  no  bargain  at  all,  but  at  the  farmer's  request  or 
with  his  knowledge  and  acceptance,  the  law  comes  in  and  com- 
pletes the  bargain,  or  makes  one  for  the  parties.  It  does  this 
on  the  principle  that  the  working-man  undertakes  to  do  his  work 
reasonably  well,  or  according  to  any  prevailing  and  acknowl- 
edged custom  as  to  time  and  manner.  And  then  that  the  farmer 
is  bound  to  pay  him  a  fair  and  reasonable  price,  measured  by 
the  custom  of  the  time  and  place,  if  thei'e  is  one  applicable  to 
the  case,  and  by  the  judgment  of  the  jury  before  whom  the  case 
comes. 

A  much  more  difficult  question  arises  when  a  man  who  is 
hired  to  work  on  certain  terms,  for  a  certain  time,  works  a  part 
of  the  time  as  he  ought  to  and  then  leaves  his  work  and  his 
employer.  Can  he  recover  from  his  employer  payment  for  the 
work  that  he  has  done }  There  is  some  conflict  in  the  law 
about  this — that  is,  in  the  decisions  of  the  courts  on  this  ques- 
tion— and  therefore  some  uncertainty  as  to  the  law.  This  diffi- 
culty springs  from  a  rule  of  law  relating  to  what  is  called 
"  Entirety  of  Contract,"  which  rule  is,  that  if  a  party  to  a  con- 
tract in  which  he  engages  to  do  one  whole  thing  does  only  a 
part  of  it,  he  cannot  claim  payment  for  that  part.  In  most 
cases  this  is  perfectly  reasonable.  If  a  man  agrees  to  sell  a 
farm  of  a  hundred  acres  for  the  price  of  $10,000,  he  cannot  say, 
I  have  concluded  to  sell  only  half  my  farm,  and  you  must  give 
me  for  that  $5,000.  But  where  the  whole  thing  consists  of 
divisible  parts,  and  to  each  part  a  proportionate  part  of  the 
money  can  be  applied,  the  rule  is  of  course  modified.  Thus  if 
A  agrees  to  sell  to  B,  and  B  to  buy  of  A,  one  thousand  bushels  of 


HIRING  OF  HELP.  827 

potatoes  of  a  certain  quality  at  one  dollar  a  bushel,  if  A  deliv- 
ers to  B  five  hundred  bushels  and  refuses  to  deliver  the  rest,  B 
can  say,  I  want  my  thousand  bushels  or  none,  and  may  then 
return  to  A  the  five  hundred  bushels  received,  and  A  has  no 
claim  on  him.  But  he  may  choose  to  keep  the  potatoes 
received,  and  then  he  must  pay  for  them  the  price  agreed  upon, 
and  so  he  must  if  he  has  sold  the  five  hundred  bushels  and  cannot 
deliver  them.  But,  on  the  other  hand,  he  has  a  valid  claim 
against  A  for  anything  he  may  lose  by  A's  failure  to  deliver  him 
that  other  five  hundred.  If,  for  instance,  potatoes  have  risen  in 
value  to  one  dollar  and  fifty  cents  a  bushel,  B  has  lost  by  not 
receiving  that  five  hundred  bushels  two  hundred  and  fifty  dollars, 
and  may  deduct  this  from  what  he  has  to  pay.  If  the  same  rule 
were  applied  to  the  case  of  a  man  who  at  the  beginning  of  the 
year  engaged  to  work  for  all  that  year  at  fifteen  dollars  a 
month,  and  who  worked  for  five  months  and  then  left  at  the  be- 
ginning of  the  hay-making  season,  and  then  wages  were  at  thirty 
dollars  a  month,  the  hirer  would  pay  him  fifteen  dollars  a  month 
for  the  time  he  worked,  deducting  therefrom  whatever  he  lost 
by  the  necessity  of  paying  higher  wages,  and  whatever  he  lost 
otherwise  by  the  hired  man's  failure  to  perform  his  contract. 
Such  is  the  view  taken  of  the  question  b)'  some  eminent  judges. 
But  the  greater  part  of  our  courts  apply  the  rule  strictly.  They 
hold  that  if  a  hired  man  engaged  for  a  year,  leaves  without  suffi- 
cient cause  at  the  end  of  the  eleventh  month,  he  forfeits  all  his 
wages  and  has  no  claim  against  the  hirer  for  any  part  of  them.. 
All  courts  agree  that  if  the  hired  man  leaves  because  of  insuffi- 
cient food,  ill-treatment  by  the  hirer,  disabling  sickness,  or  other 
sufficient  cause,  the  hirer  is  bound  to  pay  him  for  the  time  he 
worked. 

It  may  be  added  that  it  is  important  for  the  farmer  to  know 
and  regard  the  rules  pointed  out  in  our  chapter  XII  on  the  stat- 
ute of  frauds,  especially  in  section  iii. 

2.  Liability  of  the  Farmer  for  the  Wrong-doing  of  his 
Help. — This  liability  rests  upon  an  ancient  rule  of  law,  "What 
a  man  does  by  another  he  does  by  himself."  Thus  if  a  farmer 
ordered  his  hired  man  to  steal  his  neighbor's  sheep  or  wood,  the 
hired  man  would  be  held  as  a  thief,  and  the  hirer  would  be 


828    LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS. 

responsible  also.  But  the  hirer  would  not  be  responsible  for 
the  thefts  of  his  help  without  his  order  or  assent.  All  this  is 
plain  enough.  The  difficulty  comes  afterwards.  It  comes  from 
the  extension  of  the  rule  which  makes  an  employer  responsible 
for  the  negligence  or  ill-doing  of  one  employed  by  him  while 
actually  engaged  in  doing  what  he  is  lawfully  employed  to  do. 
The  cases  on  this  subject  are  numerous  and  some  of  them 
severe.  Thus,  if  a  farmer  sets  his  help  to  cutting  his  wood 
and  tells  him  distinctly  where  his  line  is,  and  the  man  forgets 
or  mistakes  and  goes  beyond  that  line  and  cuts  his  neighbor's 
wood,  the  farmer  is  responsible.  If  the  hirer  directs  his  help 
to  build  a  fire  in  a  safe  place  to  burn  up  his  rubbish,  and 
charges  him  to  take  thorough  care  of  it,  and  the  man  goes  to 
sleep  and  lets  the  fire  run  into  his  neighbor's  land,  the  farmer 
is  responsible  for  all  that  this  fire  destroys. 

SECTION  XI. 

HIRING   OF  A  FARM. 

We  have  considered  the  case  of  purchasing  a  farm.  The 
♦^'reat  majority  of  farmers  own  their  farms.  But  there  are 
many  exceptions.  A  man  may  hire  a  farm  for  a  term  of  years, 
paying  rent,  or  on  shares,  or  on  a  tenancy  which  may  be  put 
an  end  to  at  the  will  of  either  party. 

I.  Hiring  by  Lease. — In  our  chapter  on  leases,  page  6io,  we 
have  given  the  general  rules  and  principles  governing  leases, 
together  with  a  variety  of  forms.  We  will  now  give  some 
further  rules  and  offer  some  suggestions  upon  points  which  it 
may  be  useful  for  a  farmer  to  know  and  understand. 

Any  general  description  will  suffice  to  put  the  tenant  in  pos- 
session of  the  land  intended  to  be  hired,  if  it  be  capable  of  dis^ 
tinct  ascertainment  and  identification.  And  for  this  purpose 
certain  words  in  common  use,  such  as  farm,  land,  house,  field, 
wood-land,  and  the  like,  would  be  held  to  have  a  wide  meaning. 
When  such  general  and  comprehensive  terms  are  employed,  all 
such  things  as  are  usually  comprehended  within  their  mean- 
mg  will  pass  to  the  hirer  by  the  lease,  unless  the  language  of 
the  lease  or  the  circumstances  of  the  case  show  plainly  that  the 
intention  of  the  parties  was  difterent.      And  inaccuracies  as 


HIRIXG  OF  A  FARM. 

to  quantities,  names,  amounts,  etc.,  will  be  rejected  if  there  is 
enough  left  to  make  the  purposes  and  intentions  of  the  parties 
certain.  If  the  parties  have  undertaken  to  make  a  written  bar- 
gain and  have  not  made  it,  the  law  will  not  undertake  to  make 
one  for  them.  But  it  will  do  all  that  can  reasonably  be  done  to 
carry  into  full  effect,  and  exactly  as  was  intended,  the  written 
bargain  they  have  made. 

Nevertheless  there  is  a  rule,  not  of  law,  but  of  common  sense 
and  prudence,  which  is  applicable  to  everybody  in  all  matters, 
but  to  no  persons  more  so  than  to  farmers  in  relation  to  their 
farms.  This  rule  is,  that  it  is  at  once  easier  and  wiser  to  make 
all  bargains  and  contracts  such  as  will  avoid  questions  and 
doubts  than  it  is  to  answer  these  after  they  arise. 

2.  Renewal  of  Lease. — The  lessor  is  not  bound  to  renew  a 
lease  without  an  express  covenant  to  that  effect,  which  may  be 
in  the  lease  or  in  a  separate  instrument.  A  mere  understand- 
ing or  verbal  promise  is  not  sufficient  in  law,  whatever  it  ma;\f 
be  in  honor  or  in  morals. 

The  law  does  not  favor  such  covenants,  because  they 
tend  to  perpetuity.  But  if  there  be  such  a  covenant,  and 
it  is  definite  and  reasonable,  the  law  will  sustain  it.  A 
covenant  to  "  renew  this  lease  under  or  with  the  same 
covenants  "  does  not  require  that  the  new  lease  should  con- 
tain the  same  covenant  of  renewal.  For  this  would  make 
the  lease  indefinite  and  perpetual  at  the  pleasure  of  the  hirei. 
But  the  covenant  to  renew  covers  all  the  other  covenants  and 
agreements  of  the  lease.  A  covenant  to  "  renew  on  such  terms 
as  may  be  agreed  upon  "  is  void  for  uncertainty. 

3.  Remedy  for  Non-payment  of  Rent. — Leases  now  in  use 
almost  always  contain  provisions  on  this  subject,  which  are,  gene- 
rally, that  the  lessor  may  enter  and  expel  the  tenant  if  the  rent  be 
not  duly  paid,  or  that  the  tenant  forfeits  the  lease  and  all  rights 
under  it  by  non-payment  of  rent.  Provisions  to  this  effect  are 
expressed  in  various  ways,  but  are  substantially  the  same  every- 
where, and  no  particular  words  are  necessary  for  this  purpose. 
But  it  should  be  known  and  remembered  that  the  law  is  exact 
and  even  punctilious  as  to  the  exercise  of  this  right  of  re-entry. 
It  may  be  said  in  general,  that  to  justify  re-entr}'  in  case  of  for- 


830    LEGAL  RIGHTS  AND  OBLIGATIONS  OF  FARMERS. 

feiture  a  demand  must  be  made  for  the  rent  due  and  for  the 
precise  sum,  and  on  the  very  day  on  which  it  becomes  due  and 
payable,  and  of  the  tenant  himself,  or  if  a  place  be  prescribed 
in  the  lease  where  it  is  payable  the  demand  must  be  made  at 
that  place,  and  if  no  place  be  prescribed  then  of  the  tenant 
himself,  or  at  a  conspicuous  or  notorious  place  on  the  premises 
leased.  Of  course  when  the  rent  is  due  it  becomes  a  debt, 
for  which  all  the  ordinary  means  of  recovering  a  debt  may  be 
resorted  to.  But  if  there  be  no  clause  of  forfeiture  for  non- 
payment of  rent,  the  lessor  has  not,  at  common  law,  a  rightof 
re-entry  for  this  cause. 

4.  Tenant's  Right  to  Vacate  the  Premises  and  Give  up- 
THE  Farm. — As  the  owner  and  lessor  may  expel  the  hirer  and  ter- 
minate the  lease  if  he  does  not  pay  his  rent,  so  the  hirer  has  cer- 
tain rights  in  this  respect  as  against  the  owner.  In  England,  from 
whence  we  derive  our  law,  this  law  is  very  severe  against  the 
tenant.  There  the  landlord  is  under  no  obligation  to  inform  an 
intending  lessee  of  defects  or  objections  which  he  knows  and  the 
lessee  neither  knows  nor  has  means  of  knowing,  although  the 
defects  are  entirely  incompatible  with  such  use  of  the  premises 
as  the  lessor  knows  the  lessee  intends  to  put  the  farm  to  and 
indeed  hires  it  for.  The  rule  in  this  country  may  not  be  entirely 
settled.  But  we  are  decidedly  of  the  opinion  that  a  lessee  who  is 
so  deceived,  when  he  finds  that  he  cannot  cultivate  the  farm  or 
make  use  of  it  in  the  manner  he  intended,  may  throw  it  up  and 
the  lessor  has  no  claim  against  him. 

Still  more  certain  are  we  that  the  lease  is  cancelled  and  all 
right  to  rent  is  lost  by  any  violent  outrage  or  indecency  on  the 
part  of  the  lessor,  or  any.  intentional  and  m.aterial  interference 
by  him  with  the  tenant's  proper  use  and  enjoyment  of  the  farm. 

5.  Apportionment  of  Rent. — The  owner  of  a  farm  which  he 
has  let  to  a  tenant  can  sell  it  as  freely  as  if  it  were  not  leased. 
But  he  sells  his  farm  subject  to  the  lease,  for  he  cannot  impair 
the  rights  which  the  lessor  has  under  the  lease.  The  buyer 
becomes  the  lessor  and  has  all  the  original  owner's  rights  and 
is  subject  to  all  of  his  obligations  which  run  with  the  land.  So 
tfie  owner  may  sell  a  part  of  the  farm,  or  may  sell  the  whole  in 
parts  to  different  purchasers,  but  this  "does  not  extinguish  the 
obligations  of  the  hirer  or  lessee,  nor  does  it  transfer  them  all 


HIRING  OF  A  FARM.  83 1 

to  any  purchaser.  So  also  the  owner  retaining  his  ownership  may 
assign  a  portion  of  the  rent — as  one-fourth,  or  one-third,  or  one- 
half,  or  any  other  portion — to  an  assignee.  Whether  the  owner 
sells  a  part  of  the  farm,  or  the  whole  in  parts  to  different  pur- 
chasers, or  assigns  a  part  of  the  rent  or  the  whole  in  parts, 
there  must  be  an  apportiGunicnt  of  rent.  The  tenant  must  pay 
the  same  rent  as  before,  but  now  he  pays  it  to  the  persons  en- 
titled to  it,  in  the  proportion  in  which  they  are  entitled  to  it. 

If  the  owner  sells  his  farm  in  undivided  parts,  as  one- 
half  or  one-third  to  one  buyer  and  the  residue  to  another,  but  with- 
out boundaries,  there  is  no  difficulty  in  apportioning  the  rent  in 
the  same  way.  But  suppose  the  owner  sells  a  part  of  the  farm 
by  boundaries,  as  if  he  sells  certain  fields  or  lots,  the  rent  must 
now  be  apportioned  according  to  value  and  not  according  to 
quantity.  Here  again  the  tenant  has  no  other  interest  than  to 
ascertain  to  whom  he  must  pay  his  rent.  If  the  owners  and 
the  buyers  of  the  fields  or  lots  agree  together  as  to  the  appor- 
tionment of  the  rent,  the  lessee  is  bound  by  their  agreement, 
because  it  is  of  no  importance  to  him  to  whom  he  pays  his  rent. 
If  they  do  not  agree,  it  is  a  question  of  fact  which  a  jury  must 
settle  for  them. 

So  there  may  also  be  an  apportionment  by  time,  as  when  the 
lessor  dies  in  the  middle  of  the  term  for  which  the  farm  is 
leased.  The  lessee  is  now  liable  to  the  executors  or  adminis- 
trators of  the  deceased  for  so  much  of  the  rent  as  accrued 
before  he  died,  and  to  the  heir  afterwards,  or  to  the  heirs  in 
the  proportions  in  which  they  inherit  the  farm. 

6.  Cultivation  of  the  Farm, — In  our  chapter  on  leases  it  is 
said  that  the  tenant  of  a  farm  is  bound,  without  express  cov- 
enant, to  manage  and  cultivate  the  same  in  such  a  manner  as 
good  husbandry  and  the  usual  course  of  management  of  such 
farms  in  his  vicinity  require.  But  it  is  seldom  wise  to  leave 
this  matter  wholly  unprovided  for  by  express  agreement.  The 
owner  and  the  hirer  of  a  farm  generally  have  an  understanding 
on  "this  subject,  and  this  should  be  reduced  to  writing  in  the 
lease.  Perhaps  if  nothing  else  be  understood  between  them 
but  customary  and  reasonably  good  cultivation,  it  is  safe  enough 
to  leave  this  to  the  law.     But  more  may  be  agreed  upon,  and  espe- 


§32     LEGAL  RIGHTS  AXD  OBLIGATIONS  OF  FARMERS. 

cially  there  may  be  a  distinct  bargain  as  to  certain  crops,  or 
a  certain  rotation  of  crops,  or  the  cutting  of  wood,  or  what 
fields  should  be  broken  up  or  sown,  and  what,  when,  ana 
where  manure  shall  be  placed,  or  what  land  sown  to  grass,  etc. 
All  these  things  should  be  most  distinctly  and  carefully  set 
forth  in  the  lease  as  agreed  upon.  For  no  merely  verbal 
agreements  would  have  any  effect.  For  here,  as  elsewhere, 
in  accordance  with  the  important  rule  laid  down  on  page  74 
of  this  volume,  no  evidence  would  be  received  to  vary  the  lease 
or  add  to  or  diminish  its  obligations. 

For  the  purpose  of  showing  how  and  where  special  stipula- 
tions may  be  inserted  we  give  the  following  form.  The  clause 
concerning  renewal  may  be  omitted  if  there  is  no  agreement. 

(2!3.*) 
A  Form  of  a  Lease  of  a  Farm. 

This  Indenture,  ?/[ade  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and 

Witnesseth.,  That  I,  {na/ne  and  residence  of  the  lessor)  doh&rthy 

lease,  demise,  and  let  unto  {name  and  residence  of  lessee)  a  certain  farm  or 
parcel   of  land,    in   the    city  (or  town)  of  county  of  and 

State  of  with  all  the  buildings  thereon  standing,  and  the  appui: 

tenances  to  the  same  belonging,  bounded  and  described  as  follows  : 

{T/ie premises  need  not  be  described  quite  so  mifiutcly  or  fully  as  is  proper 
in  a  deed  or  mortgage  of  land,  but  fnust  be  so  described  as  to  identify  them 
perfectly,  and  make  it  certain  just  what  premises  are  leased?) 

To  Hold  for  the  term  of  from  the  day  of 

yielding  and  paying  therefor  the  rent  of 

And  said  lessee  does  promise  to  pay  the  said  rent  in  four  quarterly  pay- 
ments on  the  day  of  ,  {or  state  otherwise  just  when 
the  payments  a"e  to  be  tnadc)  and  to  quit  and  deliver  up  the  premises  to  the 
lessor  or  his  attorney,  peaceably  and  quietly,  at  the  end  of  the  term,  in  as 
good  order  and  condition,  reasonable  and  proper  use  thereof,  fire  and  other 
unavoidable  casualties  excepted,  as  the  same  now  are  or  maybe  put  into  by 
the  said  lessor,  and  to  pay  the  rent  as  above  stated,  and  all  taxes  and  duties 
levied  0/  to  be  levied  thereon,  during  the  term,  and  also  the  rent  and  taxes, 
as  above  stated,  for  such  further  time  as  the  lessee  may  hold  the  same,  and 
not  make  or  suffer  any  waste  thereof;  nor  lease  nor  underlet,  nor  permit  any 
other  person  or  persons  to  occupy  or  improve  the  same,  or  any  part  thereof, 
or  make  or  suffer  to  be  made  any  alteration  therein  but  with  the  approba- 
tion of  the  lessor  thereto,  in  writing,  having  been  first  obtained ;  and  that 
the  lessor  may  enter  to  view  and  make  improvements,  and  to  expell  the  les- 
see, if  he  shall  fail  to  pay  the  rent  and  taxes  as  aforesaid,  or  make  or  suffet 


HIRING  OF  A  FARM.  833 

any  strip  or  waste  thereof,  cr  fail  to  fulfill  any  of  the  obligations  hereinafter 
recited.  That  is  to  say,  the  said  lessee  hereby  covenants  and  agrees  that  he 
will  cultivate  the  said  farm  during  all  his  possession  of  the  same,  in  such 
manner  as  good  husbandry  requires,  and  in  especial,  that  he  will  {here  insert 
carefully  and  fully  all  the  agreements  which  the  parties  have  made  respecting 
the  cultivation  of  tJie  far)n  or  to  which  the  lessor  intends  to  bifid  the  lessee,  and 
to  which  the  lessee  is  willing  to  he  bound).  And  the  said  lessor  on  his  part 
covenants  that  he  will,  at  the  request  of  the  said  lessee,  renew  the  lease  for 
the  period  of  years,  to  begin  at  the  expiration  of  his  lease. 

In  Witness  "Whereof,  The  said  parties  have  hereunto  interchangeably  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

{Signature.)     {Seal.) 
{Signature^     {Seal. 

Signed,  Sealed,  *and  Delivered  in  Presence  of 

7.  Hiring  on  Shares. — It  is  a  common  practice  in  many 
parts  of  this  country,  for  the  owner  of  a  farm  to  let  it  "  on 
shares."  In  some  countries  the  great  body  of  the  land  is  let  in 
this  way ;  the  proprietor  finding  for  the  use  of  the  occupier, 
such  cattle,  seeds,  implements  or  tools  as  may  be  agreed  upon, 
and  the  tenant  or  occupier  of  the  land  paying  to  the  proprietor 
the  agreed  proportion  of  the  produce.  This  proportion  varies 
in  those  countries  with  varying  circumstances,  from  one-tenth 
to  one-half  ;  being  generally  from  one-third  to  one-half.  If  par- 
ties in  this  country  make  a  bargain  of  this  sort,  and  wish  to 
reduce  it  to  writing,  the  foregoing  form  of  a  lease  will  answer 
their  purpose,  provided  they  write,  in  the  place  of  the  agreement 
about  rent  in  that  form,  what  each  of  the  parties  agrees  to  do 
by  their  bargain  ;  the  one  as  to  what  the  lessor  shall  provide  fov 
the  use  of  the  hirer,  and  the  other  as  to  what  share  or  propor- 
tion of  the  produce  the  lessee  shall  pay  or  deliver  to  the  lessor 
or  owner,  and  how  it  shall  be  delivered. 

Other  rules  as  to  the  rights  and  obligations  of  farmers  as 
owners  or  hirers  of  a  farm,  or  lessors  and  lessees,  or  landlord  or 
tenants,  will  be  found  in  our  chapter  XXXI  on  leases.  Among 
them  are  the  rules  relating  to  repairs,  and  the  obligation  of 
either  party  to  make  them.  Rebuilding  in  case  of  fires. 
Assignment  of  lease,  or  underletting  of  the  whole  or  a  part  of 
the  farm.  The  rights  of  out-going  tenants  to  crops  which  he 
sowed  and  which  mature  after  he  leaves  the  farin.  Tenancy  at 
will,  and  notice  to  quit ;  and  other  like  points.  For  the  law  on 
these  subjects  we  refer  to  that  chapter, 
53 


INDEX. 


For  Index  of  Forms,  See  page  860. 


A. 

Abandonment,  in  the  law  of  marine  insur- 
ance, meaning  of,  396. 

not  obligatory  on  insured,  397. 

necessity  of,  397. 

of  the  right  of,  397. 

of  the  exercise  of  the  right  of,  399. 

how  made,  and  by  whom,  399. 

r-  St  be  distinct,  399. 

i  .deficient  in  form,  objections,  how  waived, 
400. 

when  insured  ^luist  elect  whether  or  not  to 
abandon,  400. 

acceptance  of  by  insurer,  400. 

of  the  effect  of,  401. 

masters  and  owners  become  trustees  for 
the  insurers  in  respect  to  the  property 
abandoned,  401. 

loss  after  must  be  made  up  by  owner,  402. 
i^ccEPTANCE  of  offer,  when  necessary  to  make 
a  contract,  67. 

of  bills  of  exchange,  195. 

how  may  be  made,  canceled,  etc.,  195. 

can  be  done  only  by  the  diawee,  his  agent, 
or  some  one  who  accepts  for  his  honor, 
196. 

no  holder  is  obliged  to  receive  an  accept- 
ance for  honor,  197. 

holder  may  accept  or  refuse  a  qualified, 
196. 

presentment  for,  180. 

or  payment,  for  honor,  196,  197. 

of  abandonment  in  insurance,  400. 

of  insurer,  not  necessary  to  give  full  effect 
to  an  abandonment,  400. 
Acceptor,  of  bill  of  exchange,  163. 

of  bill,  bound  to  pay  the  same  at  maturity, 

179. 
rights  and  duties  of,  195. 
Accommodation  Paper,  incidents  of,  174. 

(834) 


Acknowledgment,  necessary  before  record 

ing  deeds,  443. 
Actions,  abstract  of  the  laws  of  all  the  States 

respecting  the  commencement  of,  705. 
Adjustment,  of  average,  341. 

by  whom  made,  342. 

when  binding,  341. 

difference  between  marine  and  fire  policy 
in,  425. 
Administrators,  and  executors,  law  of,  pow- 
ers and  duties  of,  790. 
Affirmation,  of  consignee  or  agent,  364. 
Agency,  in  general,  207,  208. 

may  be  established  by  subsequent  ratifi- 
cation, 210. 

general  rules  of,  210-214. 

rights  of  action  growing  out  of,  215,  216. 
Agent,  acting  under  del  credere  commission, 
220. 

must  obey  all  instructions,  221. 

commercial  jurisdiction  over  seamen,  352. 

extent  and  duration  of  authority  of,  212- 
214. 

general  and  particular,  20S. 

binds  the  principal  by  his  acts,  207. 

liability  of,  212. 

may  receive  his  authority,  how,  209-212. 

acts  of,  may  be  ratified  by  principal  after- 
wards, 210. 

may  insure  against  fire,  415. 

when  master  of  ship  is,  346. 

in  general,  is  entitled  to  indemnity  from 
principal,  218. 

cannot  appoint  a  sub-agent  unless  author- 
ized, 218. 

is  bound  to  use  all  reasonable  care  and 
skill,  218. 

is  responsible  for  any  breach  of  duty,  218. 

employed  to  sell  property,  cannot  buy  it 
himself,  219. 


INDEX. 


835 


Agents  must  keep  exact   account  of  all  do- 
ings, 219. 

when  he  maj'  throw  up  the  agency  at 
pleasure,  220. 

authority  of,  is  revoked  by  insanity,  220. 
Agreement  and  Assent  (chap,  vi),  67. 

the  legal  meaning  of,  and  requirement  of, 
67. 

when  parties  understand  each  other  dif- 
ferently, what  their  rights,  68. 

in  construing,  the  intention  of  the  parties 
always  a  guide,  6S. 

mistakes  of  fact  in,  may  be  corrected  by 
the  courts ;  mistakes  of  law  cannot  be, 
68. 

what  a  legal-  assent  is,  69. 

offers  made  on  time,  70. 

a  bargain  made  by  correspondence,  71. 

what  evidence  may  be  received  in  refer- 
ence to  a  written  contract,  72. 

of  custom,  or  usage,  74. 

to  do  work,  when  broken  by  promisor, 
without  good  cause,  he  cannot  recover, 
102. 

rules  for  determining,  when  original  agree- 
ment has  been  somewhat  departed  from, 
103. 

when  may  be  and  when  it  should  be  made 
without  seal,  104. 

when  under  seal,  and  so  formed  that  it 
becomes  an  indenture,  104. 

when  by  one  only,  without  seal,  it  is  a 
simple  promise,  104. 

when  by  one  only,  under  seal,  it  becomes 
a  bond,  104. 

to  be  performed  within  a  year,  when  not 
affected  by  the  statute  of  frauds,  145. 

form,  and  subject-matter  of,  146. 

if  name  be  printed  to,  may  be  sufficient 
signature,  146. 

when  it  should  be  WTitten  and  signed  by 
both  parties,  77. 

not  controlled  by  oral  testimony,  except  in 
case  of  fraud,  77. 

for  sale  of  lands,  should  always  state  cov- 
enants contemplated,  85. 

for  arbitration,  not  binding  on  any,  unless 
all  have  entered  into  it,  100. 
Al.^bam.-\,  law  as  to  rights  of  married  women 
in,  40. 

days  of  grace  allowed,  and  legal  holidays 
in,  201. 

statute  of  limitations  in,  2S4. 

usury  laws  of,  30S. 


Alab.\ma,  number  of  witnesses  and  acknowl- 
edgment required  to  deeds  of  land  ex- 
ecuted in,  538. 

abstract  of  lav/s  relating  to  collection  and 
recovery  of  debts  in,  705. 

chattel  mortgages  regulated  by  statute  in, 

653- 

nimiber  of  witnesses  to  wills  necessary 
in,  7S4. 

mechanics'  liens,  abstract  of  law  of,  761. 
Alien.^tion,  in  the  law  of  insurance,  what  is 
considered  such  as  to  terminate  the  in- 
sured's interest,  423. 

consent  of  insurer  should  be  obtained  to, 

423- 
of  policy,  424. 
Allowance,  in  the  law  of  insurance,  of  new 

for  old,  403. 
Alterations,  of  policy  of  insurance,  371. 
effect  of,  on  insured  property,  412. 
prudent  to  obtain  insurer's  assent  to,  413. 
Apprentices  (chap,  iv),  34. 

obligations  of  the  master,  35. 
obligations  of  the  apprentice,  35. 
what   misconduct    of,   authorizes   a   dis- 
charge of  him  by  his  master,  35. 
seducing   an    apprentice   away  from   his 
master,  liability  for,  35. 
Application,  for  insurance,  how  made,  409. 
Arizona,  law  as  to  rights  of  married  women 
in,  40. 
days  of  grace  allowed  and  legal  holidays 

in,  201. 
statute  of  limitations  in,  285. 
usurj-  laws  of,  308. 

number  of  witnesses  and  acknowledgment 
required  to  deeds  of  land  executed  in, 

538.  . 

abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  705. 
chattel  mortgages  regulated  by  statute  in 

653. 
number  of  witnesses  to  wills  necessary  in, 

7S4. 
mechanics'  liens,  abstract  of  law  of,  761. 
Arkansas,  law  as  to  rights  of  married  wome 

in,  40. 
days  of  grace  allov.-ed  and  legal  holidays 

in,  201. 
statute  of  limitations  in,  285. 
usury  laws  of,  308. 
number  of  witnesses  and  acknowledgment, 

required  to  deeds  of  land  executed  in, 

=;-,8. 


8^6 


INDEX. 


Arkansas,  abstract  of  laws  relating  to  col- 
lection and  recovery  of  debts  in,  706. 
chattel  mortgages  regulated  by  statute  in, 

654. 
number  of  witnesses  to  wills  necessary  in, 

785. 
mechanics'  liens,  abstract  of  law  of,  76i' 
Arbitrators,  submission  to,  when  it  maybe 
set  aside  by  either  party,  before  award 
made,  25.4. 
Arbitration,  is  favored  by  law,  250. 
Articles  of  shipping,  350. 
Arrest,  of  vessel,  how  affecting  insurers,  390. 
abstract  of  the  laws  of  all  the  States  re- 
specting, 705. 
Assignment,  definition  of,  113. 
of  policy  of  insurance,  372. 
of  policy,  avoids  it,  when,  424. 
of  policy,  should  be  made  on  it,  429. 
always  best  to  secure  the  insurance  com- 
pany's assent  to,  429. 
of  policy,  what  constitutes,  in  life  insur- 
ance, 435. 
Attachment. — See  Recovery  of  Debts, 

abstract  of  the  laws  of  all  the  States  re- 
specting, 705. 
Authority,  extent  and  duration  of  agent's, 
212. 

execution  of,  must  be  conformed  to  with 
strictness,  214. 

of  ship  master,  346. 
Average,  general,  338. 

when  within  the  scope  of  insurance,  402. 

what  is  not  included  in,  339. 

adjustment  of,  341. 

adjustment  of,  by  whom  made,  when,  343. 
Award,  essentials  of,  250. 

must  be  certain,  251. 

must  be  possible,  251. 

when  fully  made,  none  of  the  parties  have 
further  control,  255. 

should  be  sealed  up  and  delivered  to  all 
the  parties,  255. 

must  be  reasonable,  251. 

must  be  final  and  conclusive,  251. 

no  especial  form  of,  necessary,  253. 

the  directions  in  submission  of,  must  be 
strictly  followed,  253. 

set  aside,  if  "  procured  by  corruption  or 
undue  means,"  253. 

set  aside,  if  the  arbitrator  has  made  a  ma- 
terial mistake  of  law  or  fact,  253. 


B. 

Bailee,  may  insure  against  fire,  416. 
Banks,  receive  more  than  legal  interest,  305. 
Bank  Bills,  are  promissory  notes  of  a  bank, 
payable  to  bearer,  172. 
a  good  tender,  unless  objected  to  at  the 
time,  172. 
Bank  Check,  is  a  bill  of  exchange,  172. 
requires  no  acceptance,  173. 
if  drawn  when  diawer  has  no  funds  in  the 

bank,  it  is  a  fraud,  i  ^t^. 
usually  payable  to  bearer,  173. 
is  not  payment  till  cashed,  173. 
countermanded  by  death  of  drawer,  174. 
if  a  bank  pay  a  forged,  it  is  its  own  loss, 
174. 
Baggage,  carrier  liable  for  reasonable  amount 
of,  271,  272. 
what  has  been  held  as,  271,  272. 
Bargain,  naked,  is  when  no  consideration  It 
given,  97. 
for  real  property,  void  when  oral,  450. 
Barratry,  how  defined,  390. 

how  provided  against  in  the  policy,  390. 
Bill  of  Lading,  essentials  of,  328-330. 
signed  by  master  of  ship,  329. 
evidence  against  shipowners,  329. 
how  given  in  case  of  charter  parties. 

335- 
Bill,  legal  meaning  of,  149. 

of  exchange,  foreign  and  inland,  175. 
maker  or  acceptor  of,  how  bound  to  pay 

the  same,  179. 
what  is  meant  by  foreign,  186. 
loss  of,  no  excuse  for  not  protesting  i ', 

186. 
notarial  seal,  evidence  of  dishonor  of  for 

eign,  186. 
paid  at  maturity  ceases  to  be  negotiable, 

195. 
portion  of,  cannot  be  transferred,  195. 
may  be    transferred   by  endorsement   of 

executor,  alter  death  of  the  holder,  195. 
of  sale  of  vessel,  355. 
of  exchange,  is  what,  162. 
difference  between  parties  to  promissory 

note  and  parties  to,  166. 
Blockade,  what  it  is,  and  law  of,  391. 

when  it  may  be  run,  391. 
Boarders  and  guests  at  hotels,  distinction 

between,  277. 

Bond,  essentials  of,  104. 

condition  of,  103. 


INDEX. 


837 


DcJND  of  bottomr}',  325-327. 

of  respondentia,  by  whom  given,  348. 
"  applies  to  what,  348. 

Bottomry,  contract  of,  325-327. 
bond  of,  325-327. 
pledge,  when  justified,  347. 
Brokers,  have  generally  no  authority  to  re- 
ceive payment,  222. 
Business  Law,  in  general,  in  chap,  ii,  27. 
Buyer,  acquires  the  right  to  consider  no  sale 
as  made,  if  the  seller  neglects  or  refuses 
to  deliver  the  goods  in  reasonable  time, 
119. 
when   imposed  upon  by  fraudulent  sale 
must  at  once  exercise  right  of  annul- 
ling it,  as  soon  as  he  knows  the  fraud, 
128. 

c. 

(.'alifornia,   law   as   to   rights   of    married 

women  in,  40. 
days  of  grace  allowed,  and  legal  holidays 

in,  201. 
statute  of  limitations  in,  2S5. 
usury  laws  of,  30S. 

number    of   witnesses    and    acknowledg- 
ment required  to  deeds  of  land  executed 

in,  53S. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  707. 
chattel  mortgages  regulated  by  statute  in, 

654. 
number   of  witnesses   to  wills  necessary 

in,  785. 
mechanics'  liens,  abstract  of  law  of,  761. 
Canada,  laws  of,  58,  692,  700. 

usury  laws  of,  308. 
CAPTURE,  how  affecting  insurers,  391. 
Cargo,  a  part  of   the,  when   legal,  may  be 

insured,  376. 
vjrhen  sold,  or  pledged  by  master,  347. 
Carrier,  is  liable  only  for  goods  delivered  to 

him,  272. 
is  liable  only  for  injuries  done  by  himself 

or  servants  to  third  persons,  273. 
private,  liability  of,  257,  258. 
when  gratuitous  bailee,  258. 
privafe,  liable  for  gross  negligence,  25S. 
common,  who  is  a,  259. 
common,  rights   and   responsibilities   of, 

259- 
common,  distinction  between  private  and, 

259. 
common,  who  are  chargeable  as,  259,  260, 


Carrier,  common,  obligation  of,  261-266. 

common,  cannot  refuse  goods  without 
good  cause,  261. 

common,  is  bound  to  receive  goods  in  a 
suitable  way,  and  at  suitable  times  and 
places,  262. 

common,  is  bound  to  comply  with  direc- 
tions, 262. 

common,  obligation  as  to  passengers,  262, 
263. 

common,  obligation  as  to  delivery  cf 
goods,  264,  265. 

common,  immediate  notice  must  be  given 
when  not  delivered  to  owner  or  agent, 
264. 

common,  lien  of,  on  goods,  266. 

common,  liability  of,  266-268. 

common,  liable  for  loss  happening  under 
his  charge,  except  for  act  of  God  or 
public  enemy,  267. 

common,  liable  for  loss  by  fire,  267. 

common,  general  principles  of  agency 
apply  to,  268. 

common,  may  be  liable  beyond  his  own 
route,  268. 

of  passengers,  is  under  more  limited  lia- 
bility, than  carrier  of  goods,  26S. 

common,  has  a  right  to  modify  his  liabil- 
ity by  bargain,  269. 

common,  notice  by,  if  reasonable  and  just, 
is  binding,  269. 

liability  of,  for  goods  carried  by  passen- 
gers, 271-273. 

liable  for  necessary  amount  of  baggage, 
271,272. 

may  insure  against  fire,  416. 
Charter,  powder  of  master  to,  346. 
Charterer,  of  ship,  rights  of,  334,  335. 
Charter  Party,  359. 

defined,  334. 

no  particular  form  for,  335. 

how  suspended  or  annulled,  338. 

contract  of,  may  be  dissolved,  how,  33S. 
Chattel  Mortgages,  abstract  of  the  laws 

of  all  the  States  respecting,  653. 
C  hoses  in  Possession,  a  law  term,  explained, 

38. 

C hoses  in  Action,  a  law  term,  explained,  38. 

Claim,  for  contribution,  338. 

of  insured,  founded  on  interest,  374. 

Codicils,  meaning  of,  law  of,  and  rules  con- 
cerning, 779. 

Collision,  who  liable  for,  348. 


INDEX. 


Collision,  rules  in  regard  to,  349. 

a  peril  of  the  sea,  389. 
Colorado,  law  of  as   to   rights  of  married 
women,  41. 
days  of  grace  allowed,  and  legal  holidays 

in,  201. 
statute  of  limitations  in,  286. 
usury  laws  of,  309. 

number  of  witnesses  and  acknowledgment 
required  to  deeds  of  land  executed  in, 

539- 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  708. 

chattel  mortgages,  regulated  by  statute  in, 

654- 
number  of  witnesses  to  wills  necessary  in, 

785. 
mechanics'  liens,  abstract  of  law  of,  762. 
Common  Carrier.     5^e  Carrier. 
Common   Law,  as   distinguished  from   stat- 
utes, 27. 
Commerce,  power  to  regulate,  in  Congress, 

318. 
Commercial  Agents,  jurisdiction  of,  over 

seamen,  352. 
Compound  Interest.    See  Interest. 
Companies,  for  effecting  fire  insurance,  405. 
mutual,  compared  with  joint  stock,  405. 
usage  of  each  other,  may  be  appealed  to 

in  what  cases,  407. 
all   insured,  become  members  in  mutual 
fire  insurance,  405. 
Compliance,   with   terms   offered,   when   it 

makes  a  contract,  69. 
Concealment  and  misrepresentation,  383. 
converse  of  representation,  419. 
effect  of,  419. 
when  would  operate  as  fraud,  and  avoid 

the  policy,  420. 
in  case  of  life  insurance,  435-439. 
Condition,  of  a  bond,  105. 

on   which    application    for   insurance   is 

based,  409. 
effect  of,  in  deed,  449. 
Confession,  of  judgment,  197. 
Connecticut,  law  as  to  rights  of  married 
women  in,  42. 
days  of  grace  allowed,  and  legal  holidays 

in,  201. 
statute  of  limitations  in,  2S6. 
usury  laws  of,  309. 

number  of  witnesses  and  acknov.-ledgment 
required  to  deeds  of  land  executed  in, 
539- 


Connecticut,  abstract  of  laws  relating   to 

collection  and  recovery  of  debts  in,  710. 

chattel  mortgages    regulated  by  statute, 

in,  654. 
number  of  witnesses  to  wills  necessary  in, 

7S5. 
mechanics'  liens,  abstract  of  law  of,    762. 
Consiue  ration,  required  to  support  a  prom- 
ise, 97. 
exceptions  to  the  rule  requiring  considera- 
tion for  a  promise,  97. 
sufficiency  of,  98. 
what  is  a  sufficient,  9S-100. 
cannot  be  anything  by  which  the  public 

interests  are  harmed,  99. 
one  promise  is  sufficient,  for  another,  99. 
failure  of,  102. 
when    failure   is    partial    onty,   may    be 

foundation  for  promise,  102. 
merely  moral,  is  not  in  law  a  sufficiently 

legal,  100. 
illegal,  loi. 
impossible,  loi. 
implied  by  seal,  106. 
need  not  be  alleged  in  a  bond,  106. 
need  not  be  expressed  in  agreement,  146. 
v.hat  it  may  be,  valuable,  legal,  or  moral, 

178. 
none  sufficient  when  illegal,  178. 
may  be  illegal,  in  how  many  ways,  17S. 
for  the  insurance,  370. 
Consignee,  may  assign  bill  of  lading,  329. 
cannot  abandon  goods  for  freight  so  lonjt 

as  they  remain  "  in  specie,"  -i^y^. 
oath  or  affirmation,  365. 
may  insure  against  fire,  415. 
may  cover  in  one  policy,  in  his  own  name, 

goods  of  various  consignors,  415. 
not  bound  to  insure,  but  may  in  his  dis- 
cretion, 415. 
Construction,  of  statute  of  limitations,  279. 
Consuls,  jurisdiction  of,  over  seamen,  352. 
Contract,  for  building,  should  always  be 
accompanied  by  specifications,  92. 
void  for  illegality  or  fraud,  1 26. 
when  "  wager,"  127. 
is  vitiated  and  avoided  by  fraud,  127. 
in  general,  the  law  of  place  governs  every, 

175- 
law  of  the  court  determines  all  questions 

as  to  remedy  on  a,  1 76. 
for  usury,  wholly  void,  302. 
foreign,  for  usury,  valid  everywhere  but  in 

tlie  States  where  suit  is  brought,  may 

be  enforced  there,  304. 


INDEX. 


839 


Contract,  law  of  place  of,  governs  constriic- 
tion  of,  314. 

valid  where  made,  valid  elsewhere,  313. 

is  made  when,  314. 

is  made  where,  314. 

as  influenced  by  law  of  place,  314,  315. 

of  bottomry,  325-327. 

of  affreightment,  is  entire,  330. 

of  charter  party,  how  dissolved,  338. 

of  insurance,  370. 

of  insurance,  when  complete,  407. 

of  insurance  must  be  strictly  regarded, 
407. 

general  principles  of  construction  of,  79'). 

some  general  rules  of  construction  of,  797. 
Contribution,  claim  for,  during  embargo  or 
capture,  338. 

how  made,  33S. 

for  ship's  repairs,  339. 
Conveyances,  of  ships,  recorded,  318. 

by  one  insured,  when  treated  as  a  mort- 
gage, 424. 
Covenants,  of  special  or  general  warranty, 
should  be  stated  in  agreement  for  sale 
of  lands,  S5. 

of  warranty,  in  deed,  447,  448. 
Copyrights,  law  of,  696. 

what  may  be  the  subject  of,  696. 

how  copyrights  may  be  obtained,  697. 

period  of  time  for  which  they  secure  the 
right,  696. 

punishment  for  infringement  of  copjTight, 
698. 

agreement  respecting  copyrights  and  pub- 
lishing, 700. 
Coverture,  a  law-term,  means  marriage. 
Creditors,  partnership,  cannot  attach  pri- 
vate property  till  private  creditors  are 
satisfied,  241. 

levy  of  private,  on  partnership  property, 
confers  only  what  the  partner  has,  241. 

have  an  insurable  interest  in  the  life  of 
their  debtor,  434. 
Custom,  of  merchants,  its  force  and  effect,  2S. 

not  valid  if  illegal,  29. 

has  no  force  when  contract  made  express- 
ly to  the  contrary,  76. 

or  usage,  made  use  of  in  construing  the 
meaning  and  effect  of  a  contract,  and 
of  the  words  used,  74,  75. 

never  considered,  if  parties  expressly 
agree  to  disregard  it,  76. 

effects  of,  on  contracts,  802- 


D. 

Dakota,  North  and  South,  law  as  to 
rights  of  married  women  in,  N.  D.,  53  ; 
S.  D.,55. 

days  of  grace  allowed,  and  legal  liolldays 
in,  N.  D.,  205  ;  S.  D.,  206. 

statute  of  limitations  in,  N.  D.,  294  ;  S. 
D.,  296. 

usury  laws  of,  N.  D.,  310 ;  S.  D.,  311. 

number  of  witnesses  and  acknowledg- 
ment, required  to  deeds  of  land  exe- 
cuted in,  N.  D.,  541  ;  S.  D.,  541. 

abstract  of  laws  relating  to  collection  and 
recovery  of  debts  in,N.D.,738;  S.D.,745. 

chattel  mortgages  regulated  by  statute  in, 
N.  D.,  660;  S.  D.,  661. 

number  of  witnesses  to  wills  necessary  in, 
N.  D.,  788 ;  S.  D.,  789. 

mechanics'  liens,  abstract  of  law  of,  N.  D., 
770;  S.  D.,  772. 

DAMAGES,when  liquidated,when  unliquidated, 

134,  301- 
Days   of    Grace    and  holidays  in   all  the 

States,  abstract  of,  201. 
Debt,  barred  under  statute  of  limitations,  279. 
Debtor   may   insure    his    life   in   favor   of 

creditor,  434. 
Debts,  recovery  and  collection  of,  703. 
Deed,  meaning  of  legal  and  common,  440. 
should  be  signed,  and  in  what   manner  1 

440. 
seal  of,  is  what,  441. 
should  be  delivered,  441. 
may  be  delivered  by  what  persons,  442. 
execution  of,  should  be  attested  by  wit 

nesses,  442. 
acknowledgment  of,  incidents  of,  443. 
must  be  registered  in  the  proper  record 

ing  office,  444. 
effect  of  non-recording,  445. 
should  be  dated,  445. 
customary  to  name  consideration  in,  445. 
receipt  of  consideration  in  does  not  bind 

seller,  446. 
description  of  land  in,  should  be  minute 

and  accurate,  446. 
when  conferring  life-interest,  merely,  ^,s,(■^ 
when  conferring  fee-simple,  447. 
terminated  by  clause  of  execution,  447. 
of  warranty,  or  of  quitclaim,  447. 
of  quitclaim,  with  wan-anty,  448. 
hardly  safe  to  have  condition  in,  449. 
as  to  husband  and  wife  joining  in,  449. 
variety  of,  450. 
deed-poll  explained,  451. 
of  indenture,  431. 


840 


INDEX. 


Deed  of  mortgage,  542. 

abstract  of  the  laws  of  all  the  States  relat- 
ing to,  53S. 
Delaware,    law  as   to   rights   of    married 
women  in,  43. 

days  of  gi-ace  allowed,  and  legal  holidays 
in,  202. 

statute  of  limitations  in,  286. 

usury  laws  of,  309. 

number  of  witnesses  and  acknowledgment 
required  to  deeds  of  land  executed  in, 

539- 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  711. 
chattel  mortgages  regulated  by  statute  in, 

'655- 
number  of  witnesses  to  wills  necessary  in, 

7S5.  _ 
mechanics'  liens,  abstract  of  law  of,   762. 
J)eliverv,   what  is  sufficient  to  constitute, 
121,  122,  124. 
as  bearing  on   the  validity  of  the  trans- 
action, 123. 
of  policy,  not  essential,  407. 
necessary  to  assignment  of  life-policy,  435. 
essential  to  validity  of  deed,  441. 
of  deed,  may  be  made  by  v/hom,  442. 
Demand  of  Payment,  is  sufficient,  if  made 
at  residence   or   place  of  business   of 
payee,  183. 
and  refusal,  what  constitutes,  183. 
bankruptcy  or  insolvency  no  excuse  for 

non  demand,  1S3. 
should  be  made  at  the  proper  place,  185. 
tor  payments  should  be  made  at  the  place 
designated  in  the  instrument,  1S5. 
Demurrage,  law  respecting,  338. 
Description',  of  property  insured,  3S6. 
in  the  policy  of  insurance,  407. 
of  insured  property,  held  to  amount  to 
what,  410. 
Desertion,  of  seamen,  how  punished,  353. 
Deviation,  how  defined,  392. 

how  affects  insurers,  392. 
District  of  Columbia,  law  of  as  to  rights 
of  married  women,  43. 
days  of  grace  allowed,  and  legal  holidays 

in,  202. 
statute  of  limitations  in,  28  7. 
usury  laws  of,  309. 

number  of  witnesses  and  acknowledg- 
ment required  to  deeds  of  land  exe- 
cuter'  in,  539. 


District  of  Columbia,  abstract   of  laws 

relating  to  collection  and  recovery   of 

debts  in^  711. 
chattel  mortgages,  regulated  by  statute  in, 

655. 
number  of  witnesses  to  wills  necessary  in 

7S5. 
mechanics'  liens,  abstract  of  law  of,   7'^''- 
DoMiCiL,  of  person  how  determined,  315,  31S. 
a  person  can  have  but  one,  316. 
first  is  retained  till  second  is  acquired.  317. 
may  be  changed,  how,  316. 
woman  marrying  acquires  her  husband's, 

3,8. 
of  the   father   determines   that   of  child, 

318. 
Drawer,  to  bill  of  exchange,  163. 

E. 

Equity   of    Redemption,    of    mortgager, 

543- 
Evidence,  of  death,  what  must  be,  433. 
may  disprove  receipt  in  deed,  446. 
cannot  be  received  to  contradict  or  change 
the  effect  of  a  written  contract,  but  may 
be  received  to  explain  it,  72. 
admissibility  of  extrinsic,  to  affect   con- 
tracts, 805. 
Exception,  to  common  law  rule,  in  case  cf 
negotiable  paper,  176. 
statutory,  imdcr  statute  of  limitations,  2S2. 
Executor,  may   indorse  bill  or  note  after 

death  of  holder,  195. 
Executors,  law  of,  powers  and  duties  of,  790. 
Execution,  of  authority,  214. 

of  fire  policy,  407. 
Exemption,  of  property,  from  attachment  or 

execution,  704. 
Exemptions,  abstract  of  statutory  provisions 

respecting  in  all  the  States,  705. 
Explanation,  of  a  written  contract,  by  evi- 
dence, law  as  to,  72,  T^. 

F. 

F.\ctor,  may  pledge  goods  for  advances  to 

principal,  221. 
must  obey  all  instructions,  221. 
liable  to  principal  for  default,  221. 
may  insure  goods  in  possession,  221. 
may  use  his  own  name  in  all  transactions, 

222. 


INDEX. 


841 


Factor,  distinction  between  foreign  and  do- 
mestic, 222,  223. 
cannot   claim    his    commissions    till   his 

whole  duty  be  performed,  222. 
Farmer,  legal  rights  and  obligations  of,  809. 
title  by  possession,    8og. 
title  by  inheritance,  810. 
title  by  purchase,  810. 
sale  of  land  at  auction,  811. 
when  land  is  sold  at  auction  in  several  lots, 

811. 
auctioneers'  liabilities  for  sale  of,  812. 
what  one  takes  by  the  deed  of  a  farm,  812. 
boundaries  and  descriptions,  812. 
contents  of  the  farm,  813. 
fixtures,  814. 
things  unremovable  by  outgoing  tenant, 

814. 
things  removable  by  outgoing  tenant,  Si  5. 
rocks,  stones,  and  soil,  rights  as  to,  815. 
adjoining  roads,  rights  as  to,  816. 
trees,  and  neighbors'  trees,  rights  as  to, 

816. 
trespassing  on  the  farm,  what  is,  817. 
rights  of  the  farmer  as  to  the  trespasser, 

817. 
farm-ways,  81 8. 
water,  rights  to,  Si 9. 
fire,  right  to  make  and  liability  for.  Sin. 
game  animals,  rights  to,  821. 
domestic  animals,  rights  and  liabilities  as 

to,  822. 
animals,  sale  of  with  warranty,  823. 
seeds,  sale  of  with  warranty,  824. 
fertilizers,  sale  of  with  warranty,  825. 
fruit  trees,  sale  of  with  warranty,  825. 
help,  hiring  of,  825. 
help,  rights  and  duties  of,  S26. 
help,  liability  of  farmer  for  wrong-doing, 

827. 
hiring  of  a  farm,  renewal  of  lease,  828. 
hiring  of  a  farm,  remedy  for  non-payment 

of  rent,  829. 
hiring  of  a  farm,  tenant's  right  to  give  up 

the  lease,  S30. 
hiring  of  a  farm,  apportionment  of  rent, 

831. 
hiring  of  a  farm,  cultivation  of  the  farm, 

831. 
hiring  of  a  farm,  on  shares,  833. 
Feme  Covert,  means  a  married  woman. 
Feme  Sole,  means  a  single  woman. 


Fire  Insurance,  to  what  applied.  405. 

by  whom  effected,  405. 

different  kinds  of  companies  for,  405. 

method  of,  409. 
Foreclosure   of  Mortgage,  explained, 

544- 
Foreign  and  Inland  Bills,  175. 
Florida,  law  as  to  rights  of  married  women 

in,  43- 
days  of  grace  allowed,  and  legal  holidays 

in,  202. 
statute  of  limitations  in,  287. 
usury  laws  of,  309. 

number    of    witnesses   and   acknowledg- 
ment required  to  deeds  of  land  executed 

in.  539- 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  712. 
chattel    mortgages,  regulated  by  statute 

in,  655. 
number  of  witnesses  to  wills  necessary  in, 

785.  _ 
mechanics'  liens,  abstract  of  law  of,  763. 
Fr.\ud,  annuls  all  obligations  and  all  contracts 

tainted  by  it,  69. 
mere  silence  is  seller,  in  general,  is  not, 

128. 
vitiates  and  avoids  all  sales,  128. 
may  be  waived,  when,  1 28. 
is   waived,    when    action  is   brought   to 

enforce  the  contract,  128. 
statute  of,  purposes  and  provisions,  142- 

147. 
Freight,  is  not  earned  unless  the  goods  are 

carried  to  place  of  destination,  330. 
rule  for,  "pro  rata  itineris,"  331. 
cannot  be  earned  by  illegal  voyage,  333. 
paid  in   advance,  not  afterwards  earned, 

must  be  repaid,  333. 
party  receiving  goods  becomes  liable  for, 

332- 
lender  on  bottomry  bond  has  no  right  to, 

333- 
mortgagee  not  in  possession  has  no  right 

to,  zyy 

is  payable  when   goods  are  delivered,  in 

specie,  though  damaged,  333. 
word  used  how,  327. 
law  of,  328. 
meaning  of,  yj"]. 
interest  in,  377. 
subject  of  insurance,  377. 


842 


IiXDEX. 


G. 

Garnishee  Process.      See  Recovery  of 

Debts,  703. 
Garnishment,  abstract  of  the  laws  of  all  the 

States  respecting,  705. 
General  Average,  338. 

sacrifice  must  be  voluntary,  necessary,  and 

effectual,  339. 
law  of,  rests  on,  339. 
goods  not  contributed  for,  when,  340. 
held  for  contribution,  341. 
when  jettisoned,  owner  entitled  to  contri- 
bution, 340. 
value  of  insured,  374. 
rules  relative  to  total  loss  of,  etc.,  402. 
General  Agency.      See  Agency,  207. 
General  Agent,  master  of  ship  is,  346. 
Georgia,  law  as  to  rights  of  married  women 
in,  44. 
days  of  grace  allowed,  and  legal  holidays 

in,  202. 
statute  of  limitations  in,  2S7. 
usury  laws  of,  309. 

number  of  witnesses  and  acknowledgment 
required  to  deeds  of  land  executed  in, 

539- 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  713. 
chattel  mortgages  regulated  by  statute  in 

655. 
number  of  witnesses  to  wills  necessary  in, 

785. 
mechanics'  liens,  abstract  of  law  of,  763. 
Guarantor,  who  is,  136. 

who  pays  principal's  debt,  may  demand 

from  the  creditor  the  securities  he  holds, 

137. 

not  bound,  unless  he  has  knowledge  of 
the  acceptance  of  his  guaranty,  138. 

discharged,  if  principal's  liability  is 
changed  without  guarantor's  consent, 
138. 

discharged,  if  the  liability  is  extended  by 
law,  138,  139. 

not  always  discharged  by  creditors  giving 
debtor  some  accommodation  or  indul- 
gence, 139. 

should  have  reasonable  notice  of  princi- 
pal's failure,  140. 

of  a  note  or  bill,  is  not  entitled  to  as 
strict  notice  as  indorser  is,  190. 
Guaranty,  incidents  of,  136-139. 

not  generally  negotiable,  136. 


Guaranty  may  be  enfcrced,  when  original 
debt  cannot  be,  137. 

contract  of,  construed  strictly,  137. 

unless  by  sealed  instrument,  must  be  sup- 
ported by  a  consideration,  137. 

not  binding  unless  accepted,  138. 

specific,  is  not  revocable,  139. 

if  by  an  official,  he  is  not  bound  personally, 
140. 

margin,  what  is,  141. 

oral  prevented  by  law,  143. 

effect  of  changing  membership  in  a  firm 
on,  139. 
Guardians,  law  of,  powers  and  duties  of,  794. 

H. 

Holder,  what  he  may  do  with  a  bill  or  note, 

179. 
of  negotiable  paper,  rights  and  duties  of, 

179. 
of  bill,  it  is  prudent  for  him  to  present  th* 

bill  for  acceptance  without  delay,  iSi. 
ill-health  on  part  of,  may  excuse  delay  in 
'    presentment,  iSi. 
may  refuse  a  qualified  acceptance,  196. 
may  cancel  the  acceptance,  196, 
is  not  obliged  to  receive  acceptance  foi 

honor,  197. 
Holidays,  in  all  the  States,  abstract  of,  201. 
Homestead,  law  of,  704. 
Hotel-keepers,  rights  and  duties  of,  276- 

27S. 
have  a  lien  on  goods  of  guests  for  board, 

276. 
must  receive  every  guest,  277. 
liability  of  for  loss  of  guests'  property,  27;!. 
Husband,  bound  to  support  his  wife  while  she 

lives  with  him,  or  if  he  sends  her  away 

without  good  cause,  59. 
a  man  is  bound  to  support  as  his  wife  one 

whom  he  lives  with,and  represents  as  his 

wife,  59. 
may  indorse  a  note  or  bill  given  to  tlie  witc 

before  marriage,  195. 


Idaho,  law  as  to  rights  of  married  women  in, 

44. 
days  of  grace  allowed,  and  legal  holidays 

in,  202.  / 

statute  of  limitations  in,2S7. 
number  of  witnesses  and  acknowledgment 
•  required  to  deeds  of  land  executed  in, 

539- 


INDEX. 


843 


Idaho,  usury  laws  of,  309. 

abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  714. 
chattel  mortgages  regulated  by  statute  in, 

655. 
number  of  witnesses  to  wills  necessary  in, 

786. 
mechanics'     liens,    abstract   of    law   of, 

763- 
Ignorance  of  Law,  excuses  no  one,  68. 
Illinois,  law  as  to  rights  of  married  women  in, 
44. 
days  of  grace  allowed,  and  legal  holidays 

in,  202. 
statute  of  limitations  in,  2S7. 
usury  laws  of,  309. 

number   of   witnesses,    and  acknowledg- 
ment required  to  deeds  of  land  executed 

in.  539- 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  715. 
chattel  mortgages  regulated  by  statute  in, 

655- 
number  of  witnesses  to  wills  necessary  in, 

7S6. 
mechanics'  liens,  abstract  of  law  of,  763. 
Indiana,  law  as  to  rights  of  married  women 

in,  45. 
days  of  grace  allowed,  and  legal  holidays 

in,  202. 
statute  of  limitations  in,  2S8. 
usury  laws  of.  309. 
number  of  witnesses  and  acknowledgment 

requu'ed  to  deeds  of  land  executed  in, 

539- 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  716. 
chattel  mortgages  regulated  by  statute  in, 

656. 
number  of  witnesses  to  wills  necessary  in, 

786. 
mechanics'  liens,  abstract  of  law  of,  764. 
Indorsee,  of  bill  of  exchange,  163. 
Indorsement,  is  what,  191. 

by  law  merchant,  bills  and  notes  payable 

to  order  are  rightfully  transferred  only 

by,  192. 
in  full,  or  in  blank,  192. 
as  to  special,  193. 
joint  payees  who  are  not  partners  must 

join  in,  193. 
the  signatures  of  all  previous  indorsers 

are  admitted  by  each,  193. 


Indorsement  may  be  restored  if  struck  out 

by  mistake,  194. 
may  be   made  on  the  paper  before  the 

note  or  bill  be  drawn,  195. 
in  blank,  or  in  full,  what  they  are,  171. 
Indorser,  each  admits  by  1  is  indorsement 

the  genuineness  of  each  previous,  193. 
may  make  a  bill  payable  to  himself  alone 

by  special  indorsement,  192. 
of  bill  of  exchange,  163. 
right  and  duties  of,  igi,  192. 
Inf.'VNTS,  or  minors,  chap,  iii,  30. 
who  are,  30. 

when  persons  cease  to  be,  30, 
promise  of,  if  not  for  necessaries,  voidable 

by  the  infant,  30. 
promise  of,  for  necessaries,  not  voidable 

by  him,  32. 
promise  of,  may  be  confirmed,    without 

words,  31. 
liable  for  frauds  of   any  kind;    therefore 

liable  if  he  obtains  goods  or  money  by 

representing  himself  of  full  age,  32,  33. 
ratifies  his  promise  to  pay  by  keeping  the 

thing  for  which  he  promised  to  pay,  33, 
necessaries,  what  are,  32. 
if  one  avoids  a  contract  because  made  in 

infancy,  he  can  take  no  benefit  from  it 

33- 
liable  for  toris^  or  wrong  doing,  32. 
Inn-keepers,  rights  and  duties  of,  276. 
Iowa,  law  as  to  rights  of  married  women  in, 

45- 
days  of  grace  allowed,  and  legal  holidayy. 

in,  202. 
statute  of  limitations  in,  28S. 
usury  laws  of,  309. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

539- 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  717. 
chattel  mortgages  regulated  by  statute  in, 

656. 
number  of  witnesses  to  wills  necessary  in, 

786 
mechanics'  liens,  abstract  of  law  of,  764. 
Insanity,  of  principal  or  agent,  revokes  au- 
thority, 220. 
Instruments,  irregular  and  ambiguous,  172, 
Insurarle  Interest,  and  how  discharged, 

372. 
Insurance,  policy  of,  370. 


844 


INDEX. 


Insurance,  marine,  how  effected,  370. 

how  affected  by  date  of  policy,  370. 

proposals  for,  370. 

constructive,  370. 

who  may  effect,  370. 

how  it  is  construed,  371. 

sustained  by  compliance  with  registry 
laws,  how,  377. 

simultaneous,  378. 

effect  of  prior,  377. 

on  freight,  377. 

double,  37S. 

against  piracy,  387. 

against  robbery,  387. 

against  theft,  387. 

terminates  when,  396. 

purpose  and  principle  of  the  law  of,  403. 

effect  of,  in  case  of  partial  loss,  403. 

contract  for,  when  complete,  407. 

application,  how  obtained,  409. 

on  what  conditions  made,  409. 

must  be  actual  authority  to  make,  416. 

double,  not  allowed,  417. 

double,  how  avoided  by  charter  of  com- 
pany, 417. 

evidence  of  overstatement  of  loss  in,  426. 

fire,  no  rule  in  for  deducting  one-third 
new  for  old,  426. 

companies  require  sworn  statement  of  cir- 
stances  of  loss,  427. 

against  accident,  disease,  and  dishonesty 
of  servants,  439. 
Insured,  must  communicate  what    things, 

384- 
aiust  account  for  proceeds  of  sale  when 
made  by  the  master  under    necessity, 

399- 

may  abandon,  when,  400. 

party,  bound  by  what  rules,  407. 

all  become  members  when  insured  in  mu- 
tual insurance  companies,  405. 

must  have  an  interest  in  the  property  in- 
sured, 414. 

when  liable  for  assessments  after  loss 
imder  mutual  policy,  426. 

must  have  an  interest  in  life  insurance,  434. 
Insurer,  how  bound  oy  the  contract,  370. 

discharged  by  concealment  or  misrepre- 
sentation, 3S3. 

liable  for  what  risks,  3S7. 

when  liable  for  collision,  389. 

how  far  answerable  for  perils  of  the  sea, 


Insurer,  held  for  losses  by  fire,  3S9. 
liable  for  theft  after  shipwreck,  389. 
liable  for  misconduct  of  the  crew,  when, 

39°- 

when  liable  under  the  general  clause,  391. 

liabilities  in  case  of  prohibited  or  contra- 
band trade,  391. 

liabilities  in  case  of  capture,  arrest,  or  de- 
tention, 390. 

how  affected  by  detention,  390. 

how  affected  by  deviation,  392. 

by  payment  for  loss,  acquire  the  insured's 
claim  for  contribution,  etc.,  403. 

when  discharged  by  alterations,  413. 

must  know  whom  they  insure,  416. 

should  be  informed  of  what  facts,  420. 

risk  incurred  by,  421. 

when  not  chargeable,  421. 

whether  held  for  loss  occasioned  by  negli- 
gence of  the  insured  or  his  servants,  422. 

liable  for  buildings  blown  up  to  check 
fires,  421. 

when  liable  for  property  destroyed  by 
lightning,  421. 

never  held  to  pay  more  than  sum  insured, 
422. 
Insurers,  against  fire,  not  held  to  pay  for 
loss  of  profits,  425. 

pay  whole  amount  lost,  when  covered  by 
policy,  425. 

have  a  right  to  rebuild  premises  when  de- 
stroyed, 425. 
Intention,  in  construction  of  policy,  408. 
Interest,  is  what,  300. 

may  be  demanded,  on  what  grounds,  300. 

is  allowed  by  law,  how,  300. 

not  generally  recoverable,  when,  301. 

laws  regulating,  301. 

when  usurious,  301. 

banks  receive  more  than  legal,  305. 

compound,  incidents  of,  307,  30S. 

compound,  is  not  strictly  usurious,  307. 

method  of  computing,  30S. 

insured's  claim  founded  on,  375. 

insurable,  374. 

insurable,  how  discharged,  375. 

of  the  insured,  414. 

of  mortgagor  and  mortgagee,  as  to  insur- 
ing mortgaged  property,  414. 

who  have  an  insurable  interest,  414,  415. 

exception  as  to  the  rule  of  any  one  al- 
lowed to  insure  property  as  his  own  in 
which  he  has  a  legal  interest,  415. 


INDEX. 


845 


Interest  of  the  insured  in  life  insurance,  434. 
Interpretation  of  contracts,  the,  76. 

J. 

Joint-Tenancy,  and  Joint  Tenants,  law- 
terms  ;  when  two  or  more  persons  own 
anything  jointly,  zsjoitti  tenants,  if  one 
dies,  the  survivor  or  sun'ivors  take  the 
share  or  interest  of  the  deceased  person, 

243- 
Judgment,  confession  of,  19S. 
Judgments,  abstract  of  the»laws  of  all  the 

States  respecting,  705. 
Jurisdiction,  over  salvage  cases,  345. 

K. 

Kansas,  law  as  to  rights  of  married  women 
in,  46. 
days  of  grace  allowed,  and  legal  holidays 

in,  202. 
statute  of  limitations  in,  288. 
usury  laws  of,  309. 
number  of  witnesses,  and  acknowladgment 

required  to  deeds  of  land  executed  in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  719. 
chattel  mortgages  regulated  by  statute  in, 

656. 
number  of  witnesses  to  wills  necessary  in, 

786. 
mechanics'  liens,  abstract  of  law  of,  764. 
Kentucky,  law  as  to  rights  of  married  wo- 
men in,  46. 
days  of  grace  allowed,  and  legal  holidays 

in,  203. 
statute  of  limitations  Ln,  2S9. 
usury  laws  of,  309. 
number  of  witnesses,  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  720. 
chattel  mortgages  regulated  by  statute  in, 

656. 
number  of  witnesses  to  wills  necessary  in. 

786. 
mechanics'  liens,  abstract  of  law  of,  765. 

L. 

Lands  can  be  transferred  by  deed  only,  440. 
Law-Merchant,  what  is  meant  by  it,  28. 


Law-Terms,  some  explanation  of,  29. 
Law  of  Place,  175. 

what  is  meant  by,  312. 

as  influencing  contracts,  313. 

general  principles  of,  312,  313. 

of  a  State  binds  all  persons  and  things 
within  the  limits  of  the  State,  312,  313. 

has  no  force  beyond  the  limits  of  the 
State,  3*1 3. 

of  foreign  States,  have,  by  comity,  a  qual- 
ified influence,  313. 

of  contract,  governs  the  effect  of  the  con- 
tract in  regard  to  personal  property,  313. 

of  real   propertrj-,  governs   the  construc- 
tion of  the  contract,  313. 
Law,  of  shipping,  how  considered,  318. 

of  freight,  32S. 

of  foreign  country  is  presumed  to  be  the 
same  as  in  the  place  of  suit,  in  absence 
of  testimony,  1 76. 
Laws,  regulating  pilotage,  353. 

regulating  interest  and  usurj*,  301. 
Lay'-Days,  are  what,  337. 
Lease,  definition  of  contract  of,  604. 

what  passes  to  tenant  under,  604. 

duties  and  obligations  of  landlord  under, 
604. 

rights  and  duties  of  tenant  under,  605  <■ 
60S. 

privilege  of  underletting  by  tenant  under, 
606. 

tenant  when  entitled  to  crops  so^^'n  dur- 
ing the,  607. 

rights  of  tenant  after  expiration  of,  607. 

what  fixtures  may  be  removed  at  expir;.- 
tion  of,  608. 

abstract  of  the  laws  concerning,  609. 
Lender  may  charge  extra  price  for  risk  in- 
ciured,  305. 

on  bottomry  bond  has  no  right  to  freight, 

333- 
Liability  of  an  agent,  215. 

of  carrier  for  baggage  of  passengers,  271. 

of  carrier  may  be  modified  by  notice,  269. 

of  carrier,  to  third  persons,  for  injury 
done  them  by  carrier  or  servants,  273. 

of  insurers,  not  affected  by  risk  of  the 
market,  404. 

none  attaches  to  the  insurers  for  a  loss 
occurring  by  natural  or  other  causes 
not  insured  against,  before  a  loss  in- 
sured against  happens,  405. 

of  master  for  discharging  seamen,  353. 


846 


INDEX. 


Letter,  contract  by,  71. 

"        "     completed  when  letter 
of  acceptance  mailed,  71. 
Libel,  when  presented,  343. 
Liberty  Policies,  393. 
Lien,  means  the  right  of  the  seller  to  retain 
the  property  till  some  claim  he  has  is 
satisfied,  118. 
is  lost  by  the  seller,  if  the  goods  are  deliv- 
ered, 1x8. 
of  bottomry  bond,  depends  not  on  posses- 
sion, 327. 
ship  has,  on  goods  for  freight,  330. 
of  seamen,  on  ship  and  freight  for  wages, 

351-  .    . 

of  material  men,  for  supplies  to  ships,  354. 

of  carrier,  on  goods,  266. 

of  mechanics  and  material  men,  law  of, 

with  forms  and  du'ections,  761. 

Life  Insurance,  purpose  and  method  of, 

430- 
how  effected,  430. 

rules  of  contracts  applicable  to,  430. 
premium  for,  how  paid,  431. 
Life-Policies,  assignable  at  law,  434. 
Limited  Partnerships,  requisites  of,  244. 
Limitations,  statute  of,  278. 

statute  of,  construction  of,  279. 
statute  of,  new  promise  under,  280. 
statute  of,  part  payment  under,  281. 
statute  of,  when  period  of  limitation  be- 
gins under,  283. 
statute   of,    statutory   exceptions   under, 

282. 
statute  of,  does  not  affect  collateral  secu- 
rity, 284. 
of  owner's  liability  for  master's  misdeeds, 

35°- 
abstract  of  statutes  of,  in  all  the  States, 

284. 
Loss,  how  divided  for  average  and  contribu- 
tion, 341. 

and  abandonment,  396. 

no  total,  by  abandonment,  unless  the 
injury  exceeds  fifty  per  cent.,  397. 

by  jettison,  salvage,  etc.,  included  in  esti- 
mate of  the,  398. 

after  abandonment,  must  be  made  up  by 
owner,  401. 

insurers  entitled  to  possession  after  pay- 
ment for  total,  401. 

of  several  insured  shipments,  there  may 
be  total  loss  of  one,  partial  of  another, 
402. 


Loss,  when  partial,  403. 

rule  for  averaging,  by  allowing  one-third 
for  new,  403. 

third  part  of,  what  deducted  from,  404. 

what  would  be  evidence  of  overstatement 
of,  423. 
Louisiana,  law  as  to  rights  of  married  wo- 
men in,  47. 

days  of  grace  allowed,  and  legal  holidays 
in,  203. 

statute  of  limitations  in,  289. 

usury  laws  of,  309. 

number  of  witnesses  and  acknowledgment 
required  to  deeds  of  land  executed  in, 

540- 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  721. 
chattel  mortgages  regulated  by  statute  in, 

656. 
number  of  witnesses  to  wills  necessary  in, 

7S6. 
mechanics'  liens,  abstract  of  law  of,  765. 

M. 

J\L\KER,  of  promissory  note,  166. 

rights  and  duties  of,  of  negotiable  paper, 

179. 
of   a  bill,  is  bound  to  pay  the  same  at 

maturity,  179. 
Mail,  putting  a  letter  in,  effect  of  as  to  con- 
tract, 71. 
Maine,  law  as  to  rights  of  married  women  in, 

48. 
days  of  grace  allowed,  and  legal  holidays 

in,  203. 
statute  of  limitations  in,  2S9. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

540. 
usury  laws  of,  309. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  722. 
chattel  mortgages  regulated  by  statute  in, 

656. 
number  of  witnesses  to  wills  necessary  in, 

787. 
mechanics'  liens,  abstract  of  law  of,  765. 
Marine  Insurance.  See  Insurance,  369. 
Maryland,   law   as   to    rights    of    married 

women  in,  48. 
days  of  grace  allowed,  and  legal  holidays 

in,  203. 
statute  of  limitations  in,  290. 
usury  laws  of,  309. 


INDEX. 


847 


Maryland,  number  of  witnesses  and  ac- 
knowledgement required  to  deeds  of 
land  in,  540. 

abstract  of  laws  relating  to  collection  and 
recovery  of  debts  in,  723. 

chattel  mortgages  regulated  by  statute  in, 
657. 

number  of  witnesses  to  wills  necessary  in. 
787. 

mechanics'  liens,  abstract  of  law  of,  765. 
Married  Women  (chap,  v),  37. 

rights  of  the  husband  at  common  law,  as 
to,  37. 

all  the  property,  real  or  personal,  38,  39. 

common  law  as  to,  not  just  or  right,  and 
changed  by  statute  in  nearly  all  our 
States,  39. 

law  of,  as  it  stands  in  the  statutes  of  the 
several  states,  Abstr.^ct  of,  40. 

wife  may  always  be  agent  of  her  husband, 

59- 

the   frequent   necessity  of  putting   their 

property  under  trust,  and  how  it  can  be 

done,  60. 
Massachusetts,  law  as  to  rights  of  married 

women  in,  49. 
days  of  grace  allowed,  and  legal   holidays 

in,  203. 
statute  of  limitation  in,  290. 
usury  laws  of,  309. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  724. 
chattel  mortgages  regulated  by  statute  in, 

657. 
number  of  witnesses  to  wills  necessar)'  in. 

787.   _ 
mechanics'  liens,  abstract  of  law  of,   766. 
Master  of  Ship,  should  sign  bill  of  lading, 

329- 
and  officers,  not  salvors,  344. 
holding  goods  for  contribution,  344. 
powers  and  duties  of,  346. 
power  to  sell  the  ship,  346. 
his  liability  for  discharging  seamen,  353. 
duties  of  repairing  ship,  346. 
Material-Men,  lien  of,  354.     See  Liens 
OF  Mechanics  AND  Material-Men. 
Mechanics,  liens  of,  761. 
Michigan,  law  as  to  rights  of  married  women 
in.  49. 


Michig.vn,  days  of  grace  allowed,  and  legal 

holidays  in,  203. 
statute  of  limitations  in,  290. 
usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  725. 
Michigan,   chattel  mortgages  regulated  by 

statute  in,  657. 
number  of  witnesses  to  wills  necessary  in, 

787. 
mechanics'  liens,-  abstract  of  law  of,  766. 
Minnesota,    law  as  to  rights   of    married 

women  in,  50. 
days  of  grace  allowed,  and  legal  holidays 

in,  204. 
statute  of  limitations  in,  291. 
usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  lands  executed  in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  727. 
chattel  mortgages  regulated  by  statute  in, 

658. 
number  of  witnesses  to  wills  necessary  in, 

787- 
mechanics'  liens,  abstract  of  law   of,  767. 
Misrepresentation  and  Concealment, 

383- 
Mississippi,   law   as   to   rights    of    married 

women  in,  50. 
days  of  grace  allowed,  and  legal  holidays 

in,  204. 
statute  of  limitations  in,  291. 
usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  lands  executed  in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  72S. 
number  of  witnesses  to  wills  necessary  in, 

787. 
chattel  mortgages  regulated  by  statute  in. 

658. 
mechanics'  liens,  abstract  of  law  of,   767. 
Missouri,  law  as  to  rights  of  married  women 

in,  50. 
days  of  grace  allowed,  and  legal   holidays 

in,  204. 
statute  of  limitations  in,  291. 


848 


INDEX. 


Missouri,  iisi;ry  laws  of,  310. 

number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed   in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  729. 
chattel  mortgages  regulated  by  statute  in, 

658. 
number  of  witnesses  to  wills  necessary  in, 

787. 
mechanics'  liens,  abstract  of  law  of,   767. 
Mistakes  of  fact  may  be  corrected  by  the 

courts,  but  mistakes  of  law  will  not  be, 

68. 
Montana,  law  as  to  rights  of  married  women 

in,  51. 
days  of  grace  allowed,  and  legal  holidays 

in,  204. 
statute  of  limitations  in,  292. 
usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  730. 
chattel  mortgages  regulated  by  statute  in, 

658. 
number  of  witnesses  to  wills  necessary  in, 

787. 
mechanics'  liens,  abstract  of  law  of,  767. 
Mortgage  of  Land,  or  real  estate,  542. 
law  of,  and  rules  concerning,  543. 
of  the  equity  of  redemption,  543. 
of  foreclosure,  544. 
of  the  mortgagor's  right  to   possession, 

545- 
Mortgage,  of  vessel,  357. 

purpose  of,  542. 

how  expressed,  543. 

containing  power  of  sale,  544. 
Mortgage  of  Personal  Property,  not 
so  formal  as  for  land,  646. 

mortgagor  may  retain  possession  if  mort- 
gage be  recorded,  646. 

equity   of  redemption    shorter    than    in 
land,  646. 

cannot  be  made  of  property  to  be  after- 
wards acquired,  647. 

duties   and  liabilities   of   pledgee  under, 
647. 

difference  between  mortgagee  and  pledgee 
in,  647. 

pledgee  under,  cannot  sell  the  pledge  be- 
fore the  debt  is  due,  647. 


Mortgage  of  Personal  Property,  un- 

der.pledgee  may  sell  the  pledge  when  the 

debt  is  due,  and  after  notice  given,  648, 

Mortgagee  of  ship,  in  possession,  liable  as 

owner,  325. 

of   ship,  not   in   possession,  no  right   to 

freight,  333. 
insurable  interest  in  property,  414. 
has  what  title  to  land  mortgage,  543. 
Mortgagor,  insurable  interest  of  in  prop- 
erty, 414. 
right   of,    in  regard  to  mortgaged   land, 

543- 
duty  of,  in  regard  to  redemption,  544. 
Mutual  Insurance  Companies,  amount 
insured  in,  407. 

N. 
Nebraska,  law  as  to  rights  of  married  women 

in,  51. 
days  of  grace  allowed,  and  legal  holidays 

in,  204. 
statute  of  limitations  in,  292. 
usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment 

requii-ed  to  deeds  of  land  executed  in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  731. 
chattel  mortgages  regulated  by  statute  in, 

659. 
number  of  witnesses  to  wills  necessary  in, 

mechanics'  liens,  abstract  of  laws  of,  76!!. 
Negotiable  Paper,  what  is  meant  by,  i5)(. 

rules  of  law  on  subject  of,  are  technicaf 
and  exact,  161. 

what  is  essential  to,  16S. 

difference  between  what  is,  and  what  ii 
not,  168. 

time  of  payment  of,  must  be  certain,  16S. 

must  be  payable  in  money,  168. 

may  be  written  in  pen  or  pencil,  on  paper 
or  any  proper  substitute,  and  in  any 
language,  169. 

as  to  form  of,  169. 

omission  of  certain  words  may  be  sup- 
plied, 169. 

contingency  apparent  on  the  face  of,  pre- 
vents negotiability,  i6g. 

as  to  whether  certain  notes  are,  169. 
jexception  to  common  law  rule  in  case  of, 

176,  177. 
of  transfer  after  dishonor  of,  iSo. 


INDEX. 


849 


Negotiable   Paper,  rights  and  duties  of 

holder  of,  179. 
rights  and  duties  of  maker  («"",  1 79. 
payable  at  a  time  certain,  is  entitled  to 

days  of  grace,  1S4. 
in  general,  all    parties  to,  entitled  to  no- 
tice, are  discharged  for  want  of  it,  190. 
bill  or  note  ceases  to  be,  when  paid,  195. 
Neutrality,  warranty  of,  380. 
Nevada,  law  as  to  rights  of  married  women 

in,  51. 
days  of  grace  allowed,  and  legal  holidays 

in,  204. 
statute  of  limitations  in,  292. 
usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

540. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  732. 
chattel  mortgages  regulated  by  statute  in, 

659. 
number  of  witnesses  to  wills  necessary  in, 

78S. 
mechanics'  liens,  abstract  of   law  of,  76S. 
New  Hampshire,  law  as  to  rights  of  mar- 
ried women  in,  52. 
days  of  grace  allowed,  and  legal  holidays 

in,  204. 
statute  of  limitations  in,  292. 
usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

541. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  733. 
chattel  mortgages  regulated  by  statute  in, 

659. 
number  of  witnesses  to  wills  necessary  in, 

7S8. 
mechanics'  liens,  abstract  of  law  of,  768 
New  Jersey,  law   as  to  rights  of  married 

women  in,  52. 
days  of  grace  allowed,  and  legal  holidays 

in,  204. 
statute  of  limitations  in,  293. 
usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

541- 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  734. 
chattel  mortgages  regulated  by  statute  in, 

659. 

54 


New  Jersey,  number  of  witnesses  to  wills 

necessary  in,  7S8. 
mechanics'  liens,  abstract  of  law  of,   768. 
New  Mexico,    aw  as  to  rights  of  married 

women  in,  52. 
days  of  grace  allowed,  and  legal  holidays 

in,  205. 
statute  of  limitations  in,  293. 
usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment, 

required  to  deeds  of  land  executed  in, 

541. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in.  735. 
chattel  mortgages  regulated  by  statute  in, 

659. 
number  of  witnesses  to  wills  necessary  in, 

788. 
mechanics'  liens,  abstract  of  law  of,  769. 
New  Promise,  by  one  who   had  made  the 

original  promise  when  an  infant,  31. 
a  mere  acknowledgment  not  enough,  31. 
may  be  conditional,  31. 
if    conditional,  condition   must   be    per- 
formed, 31. 
New  York,  law  as  to  rights  of  married  wo- 
men in,  53. 
days  of  grace  allowed,  and  legal  holidays 

in,  205. 
statute  of  limitations  in,  293. 
usury  laws  of,  310 
number  of  witnesses  and  acknowledgmenf 

required  to  deeds  of  land  executed  iDi 

541- 
abstract  of  laws  relating  to  collection  am » 

recovery  of  debts  in,  736. 
chattel  mortgages  regulated  by  statute  in, 

660. 
number  of  witnesses  to  wills  necessary  in, 

78S. 
mechanics'  liens,  abstract  of  law  of,   769. 
North  Carolina,  law  as  to  rights  of  mar- 
ried women  in,  53. 
days  of  grace  allowed,  and  legal  holidays 

in,  205. 
statute  of  limitations  in,  293.  ; 

usury  laws  of,  310. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

541. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  737. 
chattel  mortgages  regulated  by  statute  in, 

660. 


;o 


INDEX. 


North  Carolina,  number  of   witnesses  to 
wills  necessary  in,  7SS. 

mechanics'  liens,  abstract  of  law  of,  769. 
Note,  promissory,  differs   from   bill   of   ex- 
change, 163. 

indorsed  in  blank  always  transferable  by 
delivery,  171. 

when  incomplete  and  invalid,  171. 

to  a  fictitious  payee  with  same  name  in- 
dorsed by  maker,  will  be  held  the  mak- 
er's own  note,  171. 

payable  to  different  persons,  in  the  alter- 
native, not  good,  1 72. 

payable  at  any  place  should  be  demanded 
there,  1S5. 

when  not  presented  for  payment,  all  par- 
ties but  acceptor  or  maker  are  dis- 
charged, 185. 

sale  of,  when  amounting  to  usury,  306,  307. 
\5IOTiCE,  of   protest,  must  be  given,  even  to 
one  who  has  knowledge,  1S7. 

no  particular  form  of  necessary,  187. 

if  letters  be  put  in  the  office,  any  miscar- 
riage does  not  affect  the  party  giving 
notice,  187. 

should  be  sent  by  public  post,  187. 

should  be  sent  to  place  of  business  or  res- 
idence of  party  notified,  iSS. 

of  non  payment,  should  be  sent  in  reason, 
able  time,  18S. 

right  to,  may  be  waived  by  agreement, 
190. 

death  or  severe  illness  is  excuse  for  delay 
of,  191. 

want  of,  may  be  cured  by  express  promise 
to  pay,  191. 
Notice  of  Non-Payment,  there  is  no  pre- 
sumption of,  i8g. 

each  party  receiving,  has  a  day  before  he 
is  to  send  it  forward,  iSS. 

should  be  given  only  by  a  party  liable  on 
the  instrument,  1S9. 

must  be  given  to  every  antecedent  party 
who  is  to  be  held,  1S9. 

may  be  given  to  a  party  personally  or  his 
agent,  189. 

may  be  given  to  either  of  partners  jointly 
liable ;  if  not  partners,  then  to  each 
one,  190. 

one  transferring,  without  indorsement  by 
delivery,  is  not  generally  entitled  to 
190. 

to  agent  is  notice  to  the  principal,  189. 


Notice  of  Non-payment,  common  carrier 

has  a  right  to  modify  his  liability  by, 

269. 
of   carrier's   liability,   may   be   indirectly 

brouglit  home  to  a  person,  270. 
general,  will  be  enough  to  give  to  agents 

of  insurer  in  case  of  loss,  425. 

o. 

Obligee,  one  to  whom  the  obligor  is  boimd 
in  a  bond,  105. 

Obligor,  one  bound  by  a  bond,  105. 

held  to  pay  so  much  only  as  will  indem- 
nify the  obligee,  106. 

Officers  of  Ship,  not  salvors,  344. 

Ohio,  law  as  to  rights  of  married  women  in, 

53- 
days  of  grace  allowed,  and  legal  holidays 

in,  205. 
statute  of  limitations  in,  294. 
usury  laws  of,  311. 

number    of    witnesses  and   acknowledg- 
ment required  to  deeds  of  land  executed 

in,  541. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  739 
chattel  mortgages,  statute  of,  660. 
number  of  witnesses  to  wills,  78S. 
mechanics'  liens,  abstract  of  law  of,  770. 
Oklahoma,   abstract  of  laws,  54,  205,   294, 

3J1,  541,  660,  740,  770,  789. 
Oregon,  law  as  to  rights  of  married  women 

in,  54. 
days  of  grace  allowed,  and  legal  holidays 

in,  205. 
statute  of  limitations  in,  295. 
usury  law  of,  311. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

541. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  741. 
chattel  mortgages  regulated  by  statute  in, 

661. 
number  of  witnesses  to  wills  necessary  in, 

789 
mechanics'  liens,  abstract  of  law  of,  770. 
Owner  may  recover  goods  from  an  honest 

purchaser  who  has  bought    from   one 

with  defective  title.  119. 
cannot  recover  from  one  who  bought  in 

good  faith  from  one  who  bought  fraud- 
ulently from  the  owner,  119. 


INDEX. 


851 


Owners,  when  bound  by  master's  acts,  346, 

347- 
when  liable  for  mjurios  done  by  master, 

346- 
of  sacrificed  property  acquire  claim   for 

contribution,  403. 

P. 

Partners,  liability  and  authority  I  agin  when, 

229. 
may  share  the  profits  or  losses  as  they 

choose,  229. 
persons  may  be  liable  as,  to  third  persons 

who  are  not  as  between  themselves,  230. 
who  is  a  secret,  dormant,  or  nominal,  230. 
factors,   brokers,    etc.,   are   not   partners 

with  those  emploj'ing  them,  231. 
may  dissolve  the  partnership  at  pleasure 

when  working  no  disadvantage  to  the 

others,  231. 
dissolution  occurs  by  death  of  a  general 

or  special,  232. 
dissolution  also  when  one  partner's  whole 

interest  is  sold  on  execution,  233. 
dormant  or  secret  paitner  is  not  liable  for 

debts  contracted   after  his  retirement, 

233- 

should  give  notice  of  retirement,  233. 

each  one  is  agent  for  all,  234. 

one  cannot  bind  the  firm  by  a  guaranty,  a 
letter  of  credit,  or  submission  to  arbi- 
tration without  authority,  235. 

may  bind  the  firm  b)-  instrument  under 
seal,  235. 

must  act  as  such,  to  bind  the  firm,  236. 

reception  of  a  new,  makes  a  new  firm,  237. 

borrowing  money  for  partnership  pur 
poses  creates  a  partnership  debt,  237. 

obtaining  credit  for  partnership  purposes 
makes  the  firm  liable,  237. 

partner  in  general  cannot  sue  another  for 
claim  growing  out  of  partnt  rship  inter- 
ests, 239. 

either  may  sue  for  balance  on  adjustment 
of  accounts,  239. 

may  sue  his  copartner  for  money  ad- 
vanced before  partnership  formed,  239. 

who  pays  more  than  his  share  of  a  debt 
must  charge  the  firm,  240. 

the  firm  may  sue  for  goods  sold  in  the 
name  of  one,  240. 

siu-viving,  are  tenants  in  common  only 
with  representatives  of  deceased,  243. 


Partnership,  is  not  credited  by  single  joint 

transaction,  229. 
all  persons  competent  to  do  business  on 

their  own  account  may  enter  into.  229. 
when  created,  228 

no  especial  form  is  necessary  for,  229. 
may  be  formed  how,  229. 
usually  is  but  one  business  name  to  a, 

231. 
principal  test  of,  is  participation  in  profits, 

231- 
may  hold  real  as  well  as  personal  estate, 

233- 

can  have  no  seal  at  law,  236. 

money  lent  one  partner  for  partnership 
purposes,  makes  a  debt  of  the,  237. 

firm  is  liable  only  to  one  who  deals  with 
a  partner  in  good  faith,  238. 

may  be  hable  for  injury  caused  by  crimi- 
nal acts  of  a  partner,  238. 

funds  of,  must  first  be  applied  to  partner- 
ship debts,  241. 

creditors  cannot  attach  private  property 
till  private  creditors  are  satisfied,  241. 

property  goes,  in  case  of  death  of  one 
partner,  to  the  others,  only  for  purpose 
of  settlement,  243. 

limited,  requisites  of,  244. 

effect  of  dissolution  of,  243. 

dissolution  of,  held  to  avoid  policy  of  in- 
surance, 424. 
Part  Owners  of  Ships,  rights  and  obliga- 
tions of,  323. 

of  ships,  not  necessarily  partners,  323. 

may  sell  his  share  of  ship,  323. 

all  are  liable  for  repairs  to  ship,  323. 

ship's  husband,  is  commonly  one  of,  324. 
Passage-Money,  rules  of,  analogous  to  those 

of  freight,  334. 
Passengers,  may  be  salvor,  344.  , 
Patents,  the  law  of,  664. 

what  may  be  patented.  664. 

who  is  entitled  to  a  patent,  664. 

what  will  prevent  the  granting  of  a  patent, 
665. 

mode  of  proceeding  to  obtain  a  patent, 
665. 

applications ;  what,  and  how  to  be  made, 
665. 

specifications  ;  what,  and  how  to  be  made, 
666. 

oath,  or  affirmation  ;  what,  and  how  to  be 
made,  66S. 


852 


INDEX. 


Pate  NTS,  foreigners  ;  what  they  must  do,  669. 

drawings  ;  liow  they  must  be  made  and 
sent  to  the  patent-office,  669. 

model ;  how  it  must  be  made  and  sent  to 
the  patent-office,  670. 

examination,  when,  and  how  made  in  the 
patent-office,  670. 

appeals  to  the  examiners-in-chief,  672. 

appeals  to  the  Supreme  Court  of  the  Dis- 
trict of  Columbia,  673. 

rules  regulating  the  above  appeals,  673. 

interferences,  674. 

re-issues,  and  surrender,  675 

disclaimers,  678. 

extensions,  67S. 

designs,  how  they  may  be  patented,  67S. 

foreign  patents,  do  not  prevent  taking 
one  here,  681. 

caveats,  681. 

assignments  and  grants  of  patent-rights, 
6S3. 

fees  payable  to  the  patent-office ;  what, 
and  how  payable,  687. 

testimony,how  taken  and  transmitted,  688. 
Patent  Law  of  the  Dominion  of  Canada, 

688. 
Payee,  of  bill  of  exchange,  167. 

of  promissory  note,  166. 

must  be  designated,  1 70. 
Payment,  how  may  be  made,  147. 

negotiable  bill  or  note,  is  not  an  absolute, 
148. 

appropriation  of,  among  several  debts, 
149. 

may  be  appropriated  at  time  of,  by  payor, 
149. 

impossibility  of  presenting  a  bill  for,  ex- 
cuse some  delay,  183. 

time  of,  in  negotiable  paper,  must  not  de- 
pend on  a  contingency,  168. 

of  negotiable  paper,  must  be  in  money, 
168. 

of  bOls,  notes,  etc.,  's  to  be  demanded 
promptly,  though  need  not  oe  done  in- 
stantly, 184. 

demand  of,  is  sufficient,  if  made  at  usual 
residence  or  place  of  business  of  payer, 

183. 
what  constitutes  demand,  and  refusal  of 

183. 
bankruptcy  or  insolvency  no  excuse  for 

not  demanding,  183. 
tulls  on  demand  should  be  presented  in  a 

reasonable  time  for,  184. 


Payment,  every  demand  for  should  be  made 

at  the  proper  place,  185. 
part,  takes  debt  from   under   statute   of 

limitation,  28 1. 
debtor   may  appropriate,  to   any  one  of 

several  debts,  281. 
Penalty,  of  a  bond,  105. 

for  not  signing  shipping  articles,  350. 
for  discharging  seamen  without  their  con- 
sent, 353. 
Pennsylvania,  law  as  to  rights  of  married 

women  in,  54. 
days  of  grace  allowed,  and  legal  holidays 

In,  205. 
statute  of  limitations  in,  295. 
usury  laws  of,  311. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in. 

541. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  742. 
chattel   mortgages,  regulated  by  statute 

in,  661. 
number  of  witnesses  to  wills  necessary  in, 

789. 

mechanics'  liens,  abstract  of  law  of,  771. 
Perils,  of  the  sea,  38S. 

by  fire,  389. 
Pilots,  responsibilities  of,  353. 
Place,  what  is  meant  by  law  of,  312. 

general  principles  of  law  of,  312. 

law  of,  influencing  contracts,  314. 
Policy,  of  insurance,  370. 

subsequent  additions  to,  371. 

of  insurance,  how  affected  by  assignmen  V 
372. 

of  insurance,  assignment  of,  372. 

of  insurance,  when  altered,  371. 

when  open  or  valued,  372. 
.       wager,  372. 

value  insured  in  an  open,  373. 

memorandum  in,  379. 

express  warranty  in,  379. 

embraces  what  perils,  387. 

providing  against  barratry  by  clause  in, 390, 

liberty,  393. 

as  to  total  loss,  in  the  provisions  of  the, 
398. 

valuation  in  the,  generally  determines  the 
estimate  of  the  loss,  398. 

of  fire  insurance,  what  necessary  to  exe- 
cution of,  407. 

when  delayed,  and  company  not  bound, 
407. 


INDEX. 


853 


Policy,  si'.bscquent  ratificaiion  by  an  agent, 
what  effect,  ^oS. 

of  fire  insurance,  how  constnictcd  as  to 
description,  40S. 

intention  mnst  be  expressed  in,  408. 

words  "stock  in  trade "  include  what  in, 
408. 

memorandum  on  back  of,  409. 

mistake  in,  409. 

when  some  parts  written,  some  printed, 
409. 

containing  scale  of  premiums,  410. 

when  void,  for  false  statement  of  appli- 
cant, 410. 

how  affected  by  greater  hazard  for  a  time, 
411. 

when  made  by  consignee  will  be  construed 
to  cover  his  interest  only,  when  no  in- 
terest is  expressed,  415. 

by  commission  merchant,  in  his  own 
name,  when  it  may  cover  goods  of  vari- 
ous consignors,  415. 

provisions  against  double  insurance,  4 1 6. 

when  separate  statements  are  part  of. 
417. 

indorsement  made  upon,  may  take  effect 
as  part  of,  though  made  before  executed, 
418. 

when  statement  not  construed  as  part  of. 
41S. 

difference  between  marine  and  fire,  419. 

when  avoided  by  misrepresentations  or 
concealments,  419. 

always  avoided  by  warranty  broken,  419. 

parties  may  make  a  valued,  422. 

is  personal  contract  between  the  parties, 

423- 
against   fire,   contains    provision  against 

assignment,  424. 
production  of,  certificate  of  loss,  is  condi 

tion  precedent  to  payment,  424. 
difference  of  adjustment  between  marine 

and  fire,  425. 
assignment  of,  should  be  made  on  it,  429. 
assent  of  insurers  had  best  be  obtained 

to  assignment  of,  429. 
time  of  death  in  case  of  life  insurance  has 

important    effect  on  payment   of  the, 

432- 
restrictions  on  the  life  insured  in  the,  432. 
when  avoided  by  death  by  suicide,  433. 
takes  effect  from  date,  394. 
never  attaches   in  case   of   unreasonable 

delay  in  sailing,  394. 


Policy,   how   affected   by   the   words    "at," 

"  to,"  and  "  at  and  from,"  394. 
on  goods  attaches  when,  394. 
Port,  what  is  meant  by,  in  policy,  394. 
Power,  to   sell,  implies   power    to   warrant, 

etc.,  209. 
of  ship-master,  346-350. 
of  attorney,  custom-house,  366. 
Premium,  when  due  and  how  paid,  385. 
when  may  be  returned,  385. 
how  paid  in  case  of  life  insurance,  431. 
in  case  of  life  insurance  when  paid,  431. 
extra  required  in  what  cases,  433. 
Presentment,  for  acceptance,  iSo. 

should   be  made  during   business  hours, 

181. 
should  be  made  to  drawee  or  his  agent, 

181. 
for  demand  of  payment,  182. 
for  demand  of  payment,  same  for  notes 

and  bills,  182. 
for  demand  of  payment,  universal  rule  of 

law  merchant  in  regard  to,  184. 
Presumption   of   Law,  affecting  contracts 

how.  So  I. 
Principal   is    bound   by  acts   of  the  agent, 

207,  208. 
may  confer  authority  on  agent  how,  20Q. 
has  power  of  revocation  in  general,  213. 
when   undisclosed,    may    show   that    the 

nominal  party  was  actually  his  agent, 

216. 
is  responsible  for  injuries  resulting  from 

a    fraudulent    representation     of     the 

agent,  216. 
is  bound   by  payment   of   money   to   an 

agent  only  when  done  in  regular  course 

of  business,  216. 
not  responsible  for  criminal  acts,  unless 

he  expressly  commanded  them,  217. 
who  accepts  the  benefit  of  an  act  done  by 

his  agent  discharges  him  from  respon- 
sibility therefor,  217. 
general  rule  is,  he  may  revoke  Ws  agent's 

authority  at  pleasure,  220. 
cannot   revoke  authority  given  to  factor 

after  advances  made,  222. 
Profits,  how  valued  and  insured,  373. 
Promise,  of  promissory  note,  168. 

must  be  supported  by  a  consideration,  97. 
to  pay  another's  debt  when  original,  when 

collate  al,  143,  144. 
in   negotiable  paper,  must   be   absolute, 

168. 


854 


INDEX. 


Promise,  barred  under  statute  of  limitations, 
279. 

new,  sufficient  to  take  case  from  statute 
of  limitations,  2S0. 

new,  not  implied  from  mere  acknowledg- 
ment, 2S0. 

implied  by  part  payment,  28 1. 
Promise,  can  never  be  enforced  by  one  who 
knew  the  performance  thereof  impossi- 
ble, 101. 

cannot  be  enforced  when  supported  only 
by  a  valueless  consideration,  though  it 
was  at  first  apparently  good,  102. 

when  severable,  what  may  or  may  not  be 
enforced,  102. 

for  work  to  be  done,  when  broken  without 
good    cause    by    promisor,   he    cannot 
recover,  102. 
Promisor,  of  promissory  note,  166. 
Promissory  Note,  differs  from  bill  of  ex- 
change, 166. 

is  what,  167. 

not  negotiable  when,  168. 

on  demand  is  considered  as  intended  as  a 
continuing  security,  iSo. 
Property,  legal  meaning  of  word,  117. 

of  partnership  is  bound  to  pay  partner- 
ship debts,  241. 

insured,  description  of,  386. 

insured  must  contribute  to  general  aver- 
age when,  402. 

claim  for  contribution  acquired  by  owners 
of  sacrificed,  403. 

under  insurance,  effect  of  alterations  on, 
412. 
Proposals,  of  insurance,  370. 
Protest,  and  notice,  186-191. 

demand  and,  must  be  made  according  to 
law  of  the  place  where  the  bill  is  pay- 
able, 186. 

loss  of  bill  no  excuse  for  not  protesting, 
186. 

should  be  made  on  day  of  demand  and 
refusal,  186. 

Notice  of,  various  incidents  of,  186-190. 
Provision  by  statute  in  behalf  of  seamen, 

35°- 
of  seamen  provided  by  owner,  351. 

Public  Property,  retained  for  contribution, 

341- 
Purpose  and  use  of  this  book  (chap,  i),  23. 


R. 

Real  Property,  may  be  held  by  partner- 
ship, 233. 
oral  bargain  for,  of  no  effect,  450. 
Reason.\ble   Time,  allowed  by  law  for  an 
acceptance  of  an  offer  ;  what  this  time 
is,  70. 
Receipts,  definition  of,  150. 

open  to  explanation  or  contradiction,  151. 

in  deed,  may  be  shown  not  for  value,  446. 

Recording  of  deeds,  essentials  of,  444. 

Recovery  of  Dedts,  attachment,  trustee 

process,  garnishee  process,  homestead, 

and  exemption  from  execution,  703. 

Recovery  of  Debts,  abstract  of  the  laws 

of  the  States  respecting.  705. 
Registration  of  Ships,  318-320. 
Release,  differs  from  receipt,  151. 

in  the  nature  of  a  contract,  requires  con 
sideration,  151. 
Repairs,  of  ship,  340. 

value  of  old  material  should  be  deducted 

in  case  of,  404. 
how  affecting  insurer  and  insured,  413. 
Representation,  and  warranty,  417. 
differs  from  a  warranty,  41S. 
how  affecting  the  policy,  417. 
if  in  writing  or  in  parol,  419. 
in  case  of  life  insurance,  434-43S. 
Retract,  when  and  how  one  may  retract  hi? 

offer,  71. 
Revocation  is  in  general  within  the  power 
of  the  principal,  213. 
of   submission   may  be  made  by  eithe ' 

party,  254. 
of  submission,  the  other  party  has  dair- 

ages  for,  254. 
of  submission,  notice  must  be  given  of,  255. 
of  submission,  bankruptcy  does  not  amounc 

to,  255. 
of  an  offer,  when,  how,  by  whom,  71. 
Revocation  of  Wills,  7S0. 
Rhode  Island,  law  as  to  rights  of  married 
women  in,  55. 
days  of  grace  allowed,  and  legal   holidays 

in,  206. 
statute  of  limitations  in,  295. 
usury  laws  of,  311. 

number  of  witnesses  and  acknowledgment 
required  to  deeds  of  land  executed  in, 
541. 


INDEX. 


>i»j 


Rhode  Island,  abstract  of  laws  relating  tc 

collection  and  recovery  of  debts  in,  743. 

chattel  mortgages  regulated  by  statute  in, 

661. 
number  of  witnesses  to  wills  necessary  in, 

789. 
mechanics'  liens,  abstract  of  law  of,  771. 
Rights,  of  action  growing  out  of  agency,  215. 
of  the  firm  against  third  parties,  240. 
of    creditors    in   respect    to    partnership 

funds,  241. 
of  seamen  in  sickness.  351. 
of  seamen  to  be  brought  home,  352. 
and  duties,  of  maker  of  negotiable  paper, 

179. 
and  duties    of   holder  of  negotiable   pa- 
per, 179. 
and  duties  of  indcrser,  191,  192. 
and  duties  of  acceptors,  195. 
Risk,  common  sea,  340. 

parties  may  agree  as  to,  3SS. 
when  terminated,  395,  396. 
rules  concerning  '•hazardous,"  410,  411. 
Rules,  in  respect  to  passage-money,  analogous 
to  those  of  freight,  334. 
regulating  salvage,  344. 
governing  collision,  349. 
for   steam-vessels  when   meeting  others, 

349- 
of  pilots,  353. 
concerning  '"hazardous"  risks,  410,411. 

s. 

Sacrifice,  in  average,  how  justified,  341. 
&.'\LE,  is  to  be  immediately  followed  by  pay- 
ment  and    delivery,   unless    otherwise 
agreed  upon,  117. 

is  made  when  the  agreement  is  made,  1 1 7. 

what  constitutes  a,  116. 

distinction  between  agi-eement  and,  116. 

every  actual,  is  an  executed  contract, 
though  payment  may  remain  to  be 
made,  116. 

executory  contract  for,  is  not  a  present, 
116. 

of  goods,  is  exchange  thereof  for  money, 
116. 

when  bargain  does,  or  does  not  become  a, 
117. 

is  made  when  the  agreement  is  made,  117. 

is  not  complete  so  long  as  something  re- 
mains to  be  done  to  the  goods  by  the 
seller,  11S-120. 


Sale  is  not  necessarily  complete  on  the  com- 
pletion of  some  time  agreed  on,  or  hap- 
pening of  some  event,  121. 

can  be  done,  of  chattels  or  goods  not  in 
existence,  121. 

is  none,  but  for  a  price  that  is  certain  or 
capable  of  being  made  so,  121. 

when  once  effected,  the  buyer  has  a  right 
to  possession,  on  payment,  121. 

when  avoided  by  mistake,  or  defect  in 
subject-matter,  124. 

when  many  things  bought  at  one,  right  of 
buyer  as  to  refusing  a  part  without  all, 
125. 

buyer  may  have  right  of  re-delivery  by 
terms  of  bargain,  126. 

with  warranty,  128. 

of  one's  business,  when  good,  when  void, 

133- 

of  notes,  when  amounting  to  usury,  306. 
of  ships,  how  regulated,  321. 
when  made  by  master  imder  necessity, 
proceeds  must  be  accounted  for  by  in- 
sured, 399. 
Salvage,  what  constitutes,  342,  343. 
how  enforced,  343. 
proceedings  for,  343. 
what  proportion  of  value  for,  344,  345. 
how  distributed  among  salvors,  345. 
Salvors,  who  are,  343. 

passenger  may  be,  344. 
Seal,  of  deed,  is  what,  441. 

notarial,  evidence  of  dishonor  of  foreigr 
bill,  186. 
Seamen,  rights  of,  in  sickness,  351. 
discharge  of,  without  consent,  352. 
if  discharged  without  their  consent,  have 
a  right  to  be  brought  home,  352. 
<      desertion  of,  how  punished,  353. 

punishment  of,  353. 
Seaworthiness,  warranty  of,  381,  382. 

standard  for,  382. 
Seller,  has  a  lien  on  goods  for  pajment, 
1x8. 
may  resell  goods  on  notice  given  the  buyer, 
if  the  buyer  does  not  pay  in  a  reasonable 
time,  118. 
cannot  sell  and  give  good  title,  if  he  has 

only  right  of  possession,  119. 
liability  of,  as  to  keeping  goods,  122. 
obligations  of,  as  to  delivery,  122,  123. 
may  annul  a  sale  he  was  induced  to  maktt 
by  fraud,  126. 


80 


INDEX. 


Seller  not  necessarily   bound  by  receipt  in 

deed,  446. 
Sheriff,  as  to  levy  and  sale  by,  of  partner- 
ship interests,  232. 
Ships,  are  personal  property,  318. 
registration  of,  318,  320. 
transfer  of,  should  be  followed  by  posses- 
sion, 322. 
what  is  meant  by,  in  passing  property  by 

sale  of,  322. 
have  a  lien  on  goods  for  the  freight,  330. 
when  repaired,  contribution  for,  337. 
transfer  of  property  in,  321,  322. 
conveyances  of,  recorded,  321. 
mortgagee    of,    in    possession,    liable   as 

owner,  325. 
employment  of,  by  owner,  327-334. 
Shipper,  cannot  abandon  goods  for  freight  so 

long  as  they  are  in  specie,  333. 
Ji  HIPPING,  articles  of,  350. 
!')HIP  Owner,  may  let  his  ship  to  others,  334. 
must  pay  for  goods  lost  by  his  fault,  or 
the  fault  of  his  ship,  334. 
JiHip's-HuSBAND,   is    commonly   part-owner, 

324- 

powers  of,  324. 
Signature,  to  agreement,  when  it  may  be  in 
any  part  of  the  paper,  146. 

to  negotiable  paper,  how  it  may  be  writ- 
ten, 169. 
IsiNGLE  Women,  how  their  property  may  be 
put  safely  under  trust,  and  secured  to 
them,  in  view  of  their  marriage,  60. 
60UTH  Carolina,  law  as  to  rights  of  mar- 
ried women  in,  55. 

days  of  grace  allowed  and  legal  holidays 
in,  206. 

statute  of  limitations  in,  295. 

usury  laws  of,  311. 

number  of  witnesses  and  acknowledgment 
required  to  deeds  of  land  executed  in, 
541. 

abstract  of  laws  relating  to  collection  and 
recovery  of  debts  in,  744. 

chattel  mortgages  regulated  by  statute  in, 
661. 

number  of  witnesses  to  wills  necessary  in, 
7S9. 

mechanics'  liens,  abstract  of  law  of,  771. 
Specifications,  should  accompany  building 

contracts.  92. 
Statute   of  Limitations.    See  Limita- 
tions. 


St.\tutes,   as   distinguished   from   common 
law,  27. 
provisions  respecting  seamen,  350. 
of  frauds,  purpose,  and  provisions,  142- 
147. 
Stay  Laws,  abstract  of  in  all  the  States,  705. 
Stoppage  in  Transitu,  134. 

exists  only  in  actual  insolvency,  134. 

must  be  effected  by  seller,  135. 

hindered  by  possession  of  buyer,  actual  or 

constructive,  135. 
barred  by  bona  fide  sale  by  buyer,  135. 
a  seller  exercising  right  of,  does  not  re- 
scind the  sale,  but  holds  the  goods  as 
property  of  the  buyer,  136. 
Submission,  to  arbitrators,  may  be  revoked 
by   either    party   before   award    made, 
254. 
other  party  has  damages  for  revocation 
of,  254. 
Subscription  Papers,  law  as  to  them,  100. 
Survey  of  Vessels,  when  ordered,  351. 

T. 

Tenancy  by   the   curtesy,   a  law-term,   ex- 
plained, 37. 
Tender,  what  constitutes  a  good,  147. 

lawful,  and  payment  in  court,  is  a  good 

defence  to  action  for  debt,  148. 
Tennessee,   law   as   to    rights   of    married 

women  in,  55. 
days  of  grace  allowed  and  legal  holidays 

in,  206. 
statute  of  limitations  in,  296. 
usury  laws  of,  311. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

541. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  746. 
chattel  mortgages  regulated  by  statute  in, 

662. 
number  of  witnesses  to  wills  necessary  in. 

789. 
mechanics'  liens,  abstract  of  law  of,  772. 
Termini,  of  voyage  and  risk,  394-396. 

must  be  distinctly  stated,  394. 
Texas,  law  as  to  rights  of  married  women 

in,  56. 
days  of  grace  allowed,  and  legal  holidays 

in,  206. 
statute  of  limitations  in,  296. 
usury  laws  of,  311. 


INDEX. 


857 


Texas,  number  of  witnesses  and  acknowledg- 
ments required  in  deeds  of  land  executed 
in,  542. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  747. 
chattel  mortgages  regulated  by  statute  in, 

662. 
number  of  witnesses  to  wills  necessary  in, 

7S9. 
mechanics'  liens,  abstract  of  law  of,   772. 
Things  in  Action,  a  law-term,  explained,  t,%. 
Things   in    Possession,   a    law-term,    ex- 
plained, 3S. 
Title,  does  not  pass  by  sale  to  a  fraudulent 

party,  127. 
Torts,  this  word  in  law  means  wrongs,  and 
includes  all  wrong-doing,  32. 
are  what,  301. 
Trade,  contraband,  391. 

prohibited,  391. 
Trade-marks,  protected ;  and  sundry  provi- 
sions of  the  statute  respecting  them, 
and  how  they  should  be  described  and 
recorded,  given  in  full,  689. 
Vrial,  for  salvage,  how  had,  345. 
Trustee   Process.     See    Recovery    of 

Debts. 
Trustees,  a  law-term,  explained,  60. 
cannot  buy  trust  property,  219. 
may  insure  against  fire,  415. 

u. 

Usage,  when  held  unreasonable,  76. 

of  fire  insurance  companies,  when  admit- 
ted, 407. 
Usury,  what  is  meant  by,  300. 

law  in  regard  to,  301. 
Usury,  what  is  necessary  to  constitute,  301, 

302. 
contract  for,  wholly  void,  302. 
when  sale  of  notes  amounts  to,   306,  307. 
abstract  of  the  law  of  in  all  the  States,  30S. 
Utah,  law  as  to  rights  of  married  women  in, 

56. 
days  of  grace  allowed,  and  legal  holidays 

in,  206. 
statute  of  limitations  in,  297, 
usury  law  of,  311. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  lands  executed  in, 

542. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts,  in,  74S. 


Utah,  chattel  mortgages  regulated  by  statute 

in,  662. 
number  of  witnesses  to  wills  necessary  in, 

7S9. 
mechanics'  liens,  abstract  of  law  of,  772. 

T. 

Value  Received,  effect  of  these  words  in 

negotiable  paper,  178. 
Value  of  insured  goods,  how  determined,  374. 
Valuation,  how  applied  to  insured  property, 

372,  nz- 

how  understood  in  fire  policies,  422. 
mutual  companies  requke  a  valuation  ex- 
pressed, 422. 
determined  what  the  insurers  must  pay  in 

case  of  total  loss,  423. 
Vermont, law  as  to  rights  of  married  women 

in,  57- 
days  of  grace  allowed,  and  legal  holidays 

in,  206. 
statute  of  limitations  in,  297. 
usury  laws  of,  311, 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

542. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  749. 
chattel  mortgages  regulated  by  statute  in, 

662. 
number  of  witnesses  to  wills  necssary  in, 

790. 
mechanics'  liens,  abstract  of  law  of,  773. 
Vessels,  in  danger  of  collision,  duties  of,  349. 
Virginia,  law  as  to  rights  of  maiTied  women 

in,  57. 
days  of  grace  allowed,  and  legal  holidays 

in,  206. 
statute  of  limitations  in,  297. 
usury  laws  of,  311. 
number  of  witnesses  and  acknowledgment 

to  deeds  of  land  executed  in,  542. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  750. 
chattel  mortgages  regulated  by  statute  in, 

662. 
number  of  witnesses  to  wills  necessary  in, 

790. 
mechanics'  liens,  abstract  of  law  of,  773. 
Voyage,  in  respect  to  charter-party,  336. 
what  is  the  proper  course  for,  392. 
unnecessary  protraction  of.  is  a  deviation, 

393- 


858 


INDEX. 


Voyage  may  be  changed  for  purpose  of  sav- 
ing life,  393. 

new  voyage  substituted  for  one  agreed  on 
is  a  deviation,  393. 

policy  never  attaches  on  an  entirely  new, 

394- 
ship  may  visit  several  ports  by  permission, 

on  the,  393. 
where  and  when  terminated,  394. 

w. 

Wages  of  seamen,  how  regulated,  351. 
who  may  insure,  376. 
of  mariners,  not  insurable,  376. 
Waiver  of  fraud,  when  action  is  brought  to 

enforce  the  contract,  128. 
Warranty,  general,  particular,  limited,  ex- 
press, or  implied,  128. 
mere  declaration  of  opinion  is  not,  128. 
breach  of,  does  not  always  authorize  buyer 

to  return,  130. 
provisions  sold  are  always  held  to  be  sold 

with,  131. 
what  is  held  to  constitute,  128-131. 
seller  of  goods  in  possession  is  understood 

as  selling  with  warranty  of  title,  130. 
thing  sold  for  special  purpose  is  sold  with 

implied,  130. 
held  not   to  apply  where  an  ascertained 

article  is  bought,  130. 
bill  of  sale,describing  articles  sold  amounts 

to,  131. 
express,  in  policy,  379. 
breach  of,  3S0. 
subjects  of  express,  380. 
of  sailing,  380. 
of  neutrality,  380. 
implied,  381. 
of  seaworthmess,  381. 
and  representation,  417. 
part  of  contract  of  insurance,  417. 
maybeof  the  presenter  of  the  future,  418. 
continuing,  418. 
in  case  of  life-insurance,  435. 
deed,  clauses  in,  447. 
in  quit-claim  deed,  447. 
effect  of,  on  subsequent  grantees,  44S. 
Washington,  law  as  to  rights  of  married 

women  in,  57. 
days  of  grace  allowed,  and  legal  holidaj's 

in,  307. 
statute  of  limitations  in,  298. 
usury  laws  of,  311. 


Washington,    number    of    witnesses    and 

acknowledgment   required   to  deeds  of 

land  executed  in,  542. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  751. 
chattel  mortgages,  regulated  by  statute  in, 

662. 
number  of  witnesses  to  wills  necessary  in, 

790. 
mechanics'  liens,  abstract  of  law  of,  773. 
West  Virginia,  law  as  to  rights  of  married 

women  in,  51. 
days  of  grace  allowed,  and  legal  holidays, 

in,  207. 
statute  of  limitations  in,  298. 
usury  laws  of,  31 1. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed   in, 

542. 
abstract  of  laws  relating  to  collection  and 

recovery  of  debts  in,  753. 
chattel  mortgages  regulated  by  statute  in, 

663. 
number  of  witnesses  to  wills  necessary  in, 

790. 
mechanics'  liens,  abstract  of  law  of,  774. 
Wife,  may  always  be  an  agent  of  her  husband, 

59- 

is  his  agent,  with  authority  to  make  pui- 
chases  on  his  account,  for  proper  dci- 
mestic  purposes,  59. 

loses  this  authority  if  she  needlessly  leaves 
his  house,  59. 

if  she  leaves  his  house  because  of  his  cru- 
elty, she  carries  with  her  his  authoritv 
to  make  purchases  or  contracts  for  her 
proper  support,  59. 

if  she  carries  on  trade  as  a  single  woman 
when  is  the  husband  liable,  59. 

when  the  assent  of.  is  necessary  to  pass 
real  estate,  444. 

effect  of,  joining  in  deed  with  husband, 

449.  450- 
Wills,  the  law  of,  with  forms  and  directions 

for  making  and  executing,  776. 
Wisconsin,   law   as   to    rights   of    married 

women  in,  58. 
days  of  grace  allowed,  and  legal  holidays 

in,  207. 
statute  of  limitations  in,  298. 
usury  laws  of,  311. 
number  of  witnesses  and  acknowledgment 

required  to  deeds  of  land  executed  in, 

542. 


INDEX. 


S59 


Wisconsin,    abstract    of    laws    relating    to 
collection   and    recovery   of   debts    in, 

754- 
chattel  mortgages   regulated   by   statute 

in,  663. 
number  of  witnesses  to  wills  necessary  in, 

790. 
mechanics'  liens,  abstract  of  law  of,  774. 
Witnesses,  to  deed,  law  and  practice   of, 

442,  443- 
to  deeds,  number  required  by  statute  in 
all  the  States,  538. 
Wyoming,  law  as  to  rights  of  married  women 
in,  58. 


Wyoming,  days  of  grace  allowed,  and  legal 
holidays  in,  207. 

statute  of  limitations  in,  299. 

usury  laws  of,  31 1. 

number  of  witnesses  and  acknowledg- 
ment required  to  deeds  of  land  executed 
in,  542. 

abstract  of  laws  relating  to  collection  and 
recovery  of  debts  in,  755. 

chattel  mortgages  regulated  by  statute  in, 
663. 

number  of  witnesses  to  wills  necessary 
in,  790. 

mechanics'  liens,  abstract  of  law  of,  774. 


INDEX   TO   FORMS. 


Agreement  and  Contract. 

General  agreement,  sufficient  for  many 
purposes,  77. 

General  agreement,  as  used  in  the  West- 
ern States,  •]•]. 

General  contract  for  mechanics'  work,  78. 

Agreement  for  purchase  and  sale  of  land, 
in  use  in  the  Middle  States,  79. 

Agreement  for  sale  of  land,  in  use  in  the 
Western  States,  79. 

Agreement  for  warranty  deed,  used  in  the 
Western  States,  82. 

Contract  to  convey  real  estate,  in  use  in 
the  Middle  States,  82. 

Agreement  for  the  purchase  of  an  estate, 
in  use  in  New  England,  84. 

Agreement  for  the  sale  of  an  estate  by 
private  contract,  87. 

Agreement  to  be  signed  by  an  auctioneer, 
after  a  sale  by  auction,  87. 

Agreement  to  be  signed  by  the  purchaser, 
after  a  sale  by  auction,  88. 

Agreement  to  make  an  assignment  of  a 
lease,  88. 

Agi'eement  for  making  a  quantity  of  man- 
ufactured articles,  88. 

Agreement  between  a  trader  and  a  book- 
keeper, 89. 

Agreement  for  damages  in  laying  out  or 
altering  road,  go. 

Agreement  between  a  person  who  is  retir- 
ing from  the  active  part  of  a  business, 
and  another  who  is  to  conduct  the 
same  for  their  mutual  benefit,  90. 

Brief  building  contract,  92. 

Full  and  minute  building-contract,  93. 
Apprentices. 

A  general  indenture  of  apprenticeship  as 
sometimes  used  in  New  England,  35. 

Shorter  indenture  of  apprenticeship,  36. 


Arbitration. 

Simple  agreement  to  refer,  256. 

Arbitration  bond.  One  or  more  arbitra- 
tors, 256. 

Award  of  arbitrators,  257. 
Assignments. 

Brief  form  of  an  assignment  to  be  in- 
dorsed on  a  note,  or  any  similar  prom- 
ise or  agreement,  ii-^. 

General  assignment,  with  power  of  attor- 
ney, 113. 

Assignment  of  a  bond,  114. 

Assignment  of  a  bond,  with  power  of  at- 
torney, and  a  covenant,  114. 

Assignment  of  a  judgment,  in  the  form  of 
an  indenture,  115. 

Assignment  of  mortgage,  short,  590. 

Assignment  of  mortgage  with  power  of 
attorney,  590. 

Assignment  of  mortgage  by  a  corpora- 
tion, 591. 

Assignment  of  mortgage  in  use  in  Miclii- 
gan,  584. 

Assignment  of  wages,  with  power  of  at- 
torney, 115. 
Attorney,  Powers  of,  and  Agency. 

Power  of  attorney,  223. 

Power  of  substitution,  224. 

Power  of  attorney,  in  a  shorter  form,  224. 

Full  power  of  attorney  to  demand  and  re- 
cover debts,  225. 

Power  of  attorney  to  sell  and  deliver 
chattels,  226. 

Power  of  attorney  to  sell  lands,  502. 

Power  of  attorney  given  by  seller  to  buyer, 
226. 

Power  of  attorney  to  sell  shares  of  stock, 
with  appointment  by  attorney  of  sub- 
stitute, 226. 

Power  of  attorney  to  subscribe  for  stock, 


227. 


(860) 


INDEX  TO  FORMS. 


86i 


Attorney,  Powers  of,  and  Agency. 
Proxy  or  power  of  attorney  to  vote,  227. 
Proxy  revoking  all  previous  proxies,  227. 
Proxy  with  affidavit  of  ownership,  in  use 

in  NevkT  York,  227. 
Power  to  receive  dividend,  22S. 
Bonds. 

Simple  bond,  without  condition,  106. 
Bond  for  payment  of  money,  with  a  condi- 
tion to  that  effect,  with  power  of  attor- 
ney to  confess  judgment  annexed,  1 06. 
Bond  to  be  secured  by  mortgage,  546. 
Bond  for  conveyance  of  a  parcel  of  land, 

107. 
Bond  for  a  deed  of  land,  with  acknowledg- 
ment before  notary  public,  108,  501. 
Bond  in  another  form,  for  conveyance  of 

land,  with  acknowledgment,  109. 
Bond    to    corporation    for    payment    of 
money  due  for  contribution  to  capital 
stock,  with  power  of  attorney  to  confess 
judgment,  no. 
Bond  with  warrant  in  use  in  Pennsylva- 
nia, 565. 
Bond  (mortgage)  in  use  in   New  York, 
58S. 
Carriage  of  Goods  and  Passengers. 
Steam  packet  company's  receipt,  274. 
Express  company's  receipt,  274. 
Contract  for  Sale  of  Lands,  501. 
Copyright. 

Agreement  between  author  and  publisher  ; 

short  form,  700. 
Agreement  between  author  and  publisb.er  ; 

fuller  form,  701. 
Assignment  of  a  copyright,  702. 
Deeds  Conveying  Land. 

Deed  poll  of  warranty,  in  common  use  in 

New  England,  452. 
Deed  of  gift  by  indenture,  without  any 

warranty  whatever,  453. 
Deed  of  bargain  and  sale,  without  any 

warranty,  454. 
Quitclaimdeed,  without  any  warranty,  45 5. 
Deed   poll   of    release   and  conveyance ; 

short  form,  456. 
Deed  with  special  warranty  against  the 

grantor  only,  457. 
Quitclaim  deed  (long  form),  homestead 

waiver,  458. 
Deed,   with    covenant    against    grantor, 
without  release  of  homestead  or  dower, 
459- 


Deeds  Conveying  Land. 

Separate    relinquishment    of    homesteac' 
and  dower  in  land  sold  under  execu 
tion  461. 
Full  warranty  deed,  by  indenture,  without 

release  of  homestead  or  dower,  462. 
Warranty  deed  (short  form),  with  release 

of  homestead  and  dower,  464. 
Warranty   deed,   with    covenant   against 
nuisances,  without  release  of  homestead 
or  dower,  465. 
Warranty  deed,  brief,  in  use  in  Arkansas, 

468. 
Warranty  deed,  brief,  in  use  in  California, 

487. 
Warranty  deed,  brief,  in  use  in  Florida, 

46S. 
Warranty   deed,  brief,   made   under   the 

statute  in  use  in  Illinois,  484. 
Warranty  deed  in  use  in  Kentucky,  467. 
Warranty  deed  in  use  in  Louisiana,  48 1. 
Warranty  deed  in  use  in  Maryland,  4S6. 
Warranty  deed,  brief,  in  use  in  Minnesota, 

4S0. 
Warranty  deed,  brief,  in  use  in  Mississippi, 

472. 
Warranty  deed  in  use  in  Missouri,  472. 
Warranty  deed,  brief,  in  use  in  Ohio,  47S. 
Warranty  deed  in  use  in  New  Jersey,  47<:v 
^^'arranty  deed  in  use  in  New  York,  i,^Cf. 
^\■arranty   deed,  brief,  in  use   in    Nort!% 

Carclina.  470. 
Warranty  deed,  brief,  in  use  in  Pennsyl- 
vania, 475. 
Warranty  deed  in  use  in  South  Carolin.i> 

486. 
Warranty  deed  made  under  the  statute  of 

West  Virginia,  48  5. 
Warranty  deed,  brief,  in  use  in  Wiscon- 
sin, 474. 
Deed    of    grant    with    warranty    against 
claimants  tlirough    grantor,  in   use  in 
Delaware,  495. 
Deed  of  gi-ant  and  quitclaim  of  property 
and  mining  right,  in  use  in  California 
and  the  mining  States,  483. 
Quitclaim  deed,  brief,  in  use  in  Alabama, 

498. 
Quitclaim  deed,  brief,  in  use  in  Delaware, 

497- 
Quitclaim  deed  in  use  in  Indiana,  496. 
Quitclaim  deed  in  use  in  Nebraska,  497. 
Deed  in  use  in  Province  of  Ontario,  53a 


86: 


INDEX  TO  FORMS. 


Deeds  Conveying  Land. 

Deed  with  mortgage  back  to  secure  price, 

m  use  in  the  Province  of  Quebec,  531. 
Deed  with  covenants  and  release  of  dower 

in  use  in  the  Province  of  Ontario,  533. 
Deed  of  grant  and  quitclaim,  534. 
Deed  of  grant  in  use  in  Prince  Edward 

Island,  536. 
Bond  for  a  deed,  501. 
Contract  for  sale  of  land,  with  penal  obli- 
gation, 501. 
Power  of  attorney  to  sell  lands,  502. 
Trust  deed  for  the  benefit  of  a  wife,  or 

some  other  person,  504. 
Trust  deed  to  secure  payment  of  a  note, 

without  release  of  homestead  or  dower, 

505. 
Deed  of  trust  to  secure  a  debt  (fuller 

form),  and  with  release  of  dower,  507. 
Ci\,ARANTY. 

Guaranty  to  be  indorsed  on  note,  140. 

Guaranty  of  a  note  on  separate  paper,  140. 

Guaranty  in  another  way,  140. 

Letter  of  guaranty,  141. 

Guaranty  with  collaterals,  authorizing  sale, 
141. 

Guaranty  with  collaterals,  promising  addi- 
tional security  or  authorizing  sale,  141. 

IWFANTS. 

Promise  in  writing,  34- 
Insurance,  Marine. 

Abandonment,  399. 
Insurance,  Fire. 

Immediate  notice  of  loss,  426. 

Notice,  with  certificate  of  magistrate,  427. 

Assignment  of  a  policy  to  be  indorsed 
thereon,  428. 

Transfer  and  assignment  of  policy,  429. 
Leases  of  Houses  and  Lands. 

Short  form  of  lease,  610. 

Fuller  form,  with  a  provision  for  abate- 
ment of  rent,  610. 

Short  form  of  lease,  in  use  in  the  Western 
States,  612. 

Lease  of  city  property,  in  use  in  Chicago, 

C13. 

Lease  with  provisions  for  taxes  and  assess- 
ments, 615. 

Lease,  with  covenants  about  water-rates 
and  injury  by  fire,  in  use  in  New  York, 
617. 

Lease  by  grant,  in  use  in  the  Western 
States,  619. 


Leases  of  Houses  and  Lands. 

Lease  by  certificate,  with  surety,  620. 

Lease  of  city  property,  in  use  in  St.  Louis, 
621. 

What  is  called  a  country  lease,  in  use  in 
the  Western  States,  622. 

A  ground  lease,  624. 

Assignment  of  lease,  and  ground  rent,  627. 

Lease  containing  chattel  mortgage  cove- 
nants, to  secure  rent,  629. 

A  buUding  lease,  632. 

A  mining  lease,  633. 

Lease  of  land  supposed  to  contain  oil, 
salt,  or  other  minerals,  634. 

Assignment  of  a  lease,  636. 

Landlord's  notice  to  quit  for  non-payment 
of  rent ;  short  form,  636. 

Landlord's  notice  to  quit  for  non-payment 
of  rent ;  another  form,  637. 

Landlord's  notice  to  pay  rent  due,  or  quit, 

637. 
Landlord's  notice  to  leave  at  end  of  terra, 

637- 
Landlord's  notice  to  determine  a  tenancy 

at  will,  638. 
Receipt  for  rent,  in  use  in  New  York,  638. 
Lease  in  use  in  Province  of  Quebec,  63S. 
Lease  in  use  in  Province  of  Quebec,  known 

as  private  lease,  640. 
Lease,  house,  in  use  in  Ontario,  643. 
Lease  of  land  in  general  use,  644. 
Lease  of  a  farm,  832. 
Liens  of  Mechanics  and  MATERiAL-MEJi 
Notice  under  mechanics'  lien,  758. 
Bill  of  particulars  of  mechanics'  claim,  759. 
Release  and  discharge  of  mechanics'  lien, 

759- 
Release   and   discharge  of  a  mechanic's 
lien,  another  form,  760. 
Married  Women. 

Indenture  to  put  in  trust  the  property  of 

a  married  woman,  60. 
Another  form  of  indenture  in  trust,  for 
property  of  unmarried  women,  64. 
Mortgages  of  Land. 

Promissory  note,  to  be  secured  by  mort- 
gage, 546. 
Bond  to  be  secured  by  mortgage,  546. 
Mortgage,  without  power  of  sale  andvrfth- 
out  warranty,  but  with  release  of  home- 
stead and  dower,  547. 
Mortgage,  with  power  of  sale,  to  secure  a 
bond,  without  release  of  dower,  548. 


INDEX  TO  FORMS. 


Z6- 


Mortgages  of  Land. 

Mortgage  to  secure  a  debt,  with  power  of 

sale  ;  short  form,  550. 
Mortgage  to  secure  a  debt  (fuller  form), 

with  power  of  sale,  551. 
Deed  poll  of   mortgage,  with   power  to 

sell,  and  insurance  clause,  and  release 

of  homestead  and  dower,  552. 
Mortgage   by   indenture,  with   power   of 

sale,  and  interest  and  insurance  clause, 

to  secure  a  bond,  554. 
Mortgage  to  executors,  with  power  of  sale, 

557- 
Mortgage  of  a  lease,  559. 
Mortgagee's  deed,  under  a  power  of  sale, 

561. 
Mortgage  deed  without  release  of  dower, 

etc.,  in  use  in  Wisconsin,  574. 
Mortgage  deed  to  secure  a  bond,  in  use  in 

South  Carolina,  569. 
Mortgage  to  secure  a  bond  with  warrant, 

in  use  in  Pennsylvania,  562. 
Mortgage  deed  in  use  in  New  York,  585. 
Mortgage,  with  power  of  sale,  in  use  in 

Missouri,  573. 
Mortgage  deed  in  use  in  Maryland,  567. 
Mortgage  deed  in  use  in  Louisiana,  577. 
Mortgage  deed  to  secure  a   promissory 

note,  in  use  in  Kansas,  572. 
Mortgage  deed,  with  release  of  dower,  etc., 

to  secure  payment  of  premises  sold,  in 

use  in  Iowa,  576. 
Mortgage  deed  (short)  in  use  in  Indiana, 

574- 

Mortgage  deed  with  power  of  sale,  in  use 
in  Georgia,  571. 

Mortgage  deed  in  use  in  Province  of 
Quebec,  597. 

Mortgage  deed  for  general  use  in  the 
Dominion  of  Canada,  600. 

Trust  deed  to  secure  a  debt,  payable  in 
gold  coin,  in  use  in  Cahfornia,  489. 

Trust  deed  to  secure  payment  of  a  prom- 
issory note,  in  use  in  Colorado,  492. 

Trust  deed  by  way  of  mortgage,  in  use  in 
Virginia  and  West  Virginia,  488. 

Mortgage,  satisfaction  of,  in  use  in  New 
York,  589. 

Mortgage,  satisfaction  of,  in  use  in  New 
Jersey,  581. 

Mortgage,  satisfaction  of,  in  use  in  Min- 
nesota, 5S3. 

Mortgage,  assignment  of,  in  use  in  Mich- 
igan, 584. 


Mortgages  of  Land. 

Mortgage,  release  of,  in  use  in  Kansas, 
582. 

Deed  of  trust,  release  of,  in  use  in  Color- 
ado, 581. 

Deed  of  trust,  release  of,  in  use  in  Vir- 
ginia and  West  Virginia,  583. 

Assignment  of  mortgage,  short  form,  590. 

Assignment  of  mortgage  with  power  of 
attorney,  590. 

Assignment  of  mortgage  by  a  corpora- 
tion,  591. 

Discharge  of  mortgage,  short  form,  592. 

Release  and  ■  quitclaim  of  mortgage,  as 
used  in  the  Western  States,  593. 

Discharge  of  mortgage,  as  used  in  the 
Middle  States,  593. 

Discharge  and  satisfaction  of  mortgage 
by  a  corporation,  594. 

Release  of  a  part  of  the  mortgaged  prem- 
ises, 594. 

Deed  extending  a  mortgage,  596. 
Mortgages  of  Goods  and  Chattels. 

Mortgage  of  personal  property,  649. 

Mortgage  of  personal  property,  with 
warranty,  649. 

Mortgage  of  personal  property,  with 
power  of  sale,  651. 

Mortgage    of    personal    property,    with 
power  of  sale;  another  form,  652. 
Notes  of  Hand  and  Bills  of  Exchange. 

Common  form  of  a  bill  of  exchange,  162. 

Common  forms  of  a  promissory  note,  163. 

Form  of  a  note  secured  by  mortgage,  as 
used  in  Illinois,  164. 

Promissory  note  to  be  secured  by  mort- 
gage, 546. 

Form  of  a  note  given  for  a  chattel  sold, 
with  a  condition  preserving  the  owner- 
ship of  the  seller,  170. 

Judgment  note,  with  waiver,  198. 

Judgment  note,  with    fuller   waiver  and 
power  of  attorney,  19S. 
Partnership. 

Articles  of  copartnership  between  two 
tradesmen,  245. 

Short  form  of  articles  of  copartnership, 
247. 

Certificate  of  a  limited  partnership,  with 
acknowledgment  and  oath,  249. 
Patents. 

Form  of  petition,  665. 

Specification  to  accompany  a  petiti/m  66;f 

Form  of  oath,  668. 


864 


INDEX  TO  FORMS. 


Patents. 

Appeal  to  the  examiner-in  chief,  673. 

Petition  for  re-issue,  677. 

Oath  to  be  appended  to  application  for 
re-issue,  677. 

Disclaimer  by  an  assignee,  67S. 

Application  for  patents  of  designs,  680. 

Specifications  for  designs,  6S0. 

Form  of  caveat,  6S2. 

Assignment  of  the  entire  interest  in  let- 
ters patent  before  obtaining  the  same, 
and  to  be  recorded  preparatory  thereto, 
684. 

Assignment  of  an  undivided  interest,  684. 

Grant  of  a  territorial  right  in  a  patent,  685. 

Forms  of  license,  686. 
Protest. 

Notarial,  and  notice  of,  200. 
Receipts  and  Releases. 

Receipt  for  money,  150. 

Another  form  of  receipt  for  money,  150. 

Receipt  for  papers  or  other  articles,  150. 

General  release,  151. 

Mutual  general  release  by  indenture,  152. 

Release  from  creditors  to  a  debtor,  under 
a  composition,  152. 

Release  of  all  legacies,  152. 

Release  of  a  bond,  it  being  lost,  153. 

Release  of  a  judgment,  154. 

Release  of  a  condition,  155. 

Release  of  a  covenant  contained  in  an  in- 
denture of  lease.  155. 

Release  in  extinguishment  of  a  power,  1 56. 

Release  from  a  lessor  to  a  lessee  (upon 
his  surrendering  his  lease)  from  the 
covenants  therein,  156. 


Receipts  and  Releases. 

General  release  of  dower,  157. 
Release  of  dower  to  the  heir,  157. 
Release  of  dower  in  consideration  of  an 

annuity  given  by  will,  158. 
Release  of  dower  when  the  husband  of 

the  widow  joins  in  the  deed,  158. 
Release  of  a  trust,  159. 
Release  of  right  to  lands,  160. 
Release  between  two  traders  in  settling 

accounts,  160. 
Release  of  deeds  of  trust  in  Colorado,  581. 
Release  of  mortgage  in  Kansas,  5S2. 
Release  of  trust  deed  in  Virginia,  583. 
Sales. 

Bill  of  sale  of  personal  property,  132. 
Bill  of  sale  of  personal  property,  with  a 

condition  to  make  it  a  mortgage  with 

power  of  sale,  132. 
Shipping. 

Bill  of  sale  of  vessel,  355. 

Mortgage  of  a  vessel,  357. 

Charter  party,  359. 

Bill  of  lading,  360. 

Shipping  articles  in  common  use,  361. 

Bottomry  bond,  364. 

Oath  or  affirmation  of  consignee  or  agent, 

365- 
Custom-house  power  of  attorney,  366. 

Maritime  protest,  367. 
Steamboat  warrant,  as  used  in  the  West' 
ern  States,  369. 
Wills. 

A  will,  781. 

Copy  of  a  fuller  form  of,  7S2. 


1 

TABLES  0] 

^   INTEKEST  AT  SIX  PER  CENI 

$1 

$2 

$3 

$4: 

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Days. 

^•6' 

$7 

$8     , 

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60 

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.  7 

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.  11 

.  13 

14 

16 

2 

.  4 

.  6 

.  8 

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4 

.  12 

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.  16 

18 

20 

3 

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5 

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23 

25 

3 

.  6 

.  9 

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6 

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27 

30 

4 

.  7 

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.  14 

.  18 

7 

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.  25 

.  28 

32 

35 

4 

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8 

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40 

5 

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41 

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24 

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1.20 

48 

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i.l6  : 

2.40 

TABLE  OF  INTEREST  AT  SIX  PEE 

CENT. 

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1 

$dO 

$50 

$60 
.    ] 

Days.  , 

^70 
■    1 

$80 
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$90 

$100 

$200 

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.    1 

1 

.  2 

.     2 

.  3 

1 

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1 

J. 

.  2 

2 

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4 

•  5 

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•  3 

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.  5 

5 

•  6 

•  7 

.  8 

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.  17 

2 

•  3 

•  4 

.  5 

.  6 

6 

•  7 

•  8 

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•  5 

.  6 

.  7 

7 

•  8 

•  9 

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.  23 

3 

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3 

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3 

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•  7 

.  8 

.  10 

10 

•  12 

•  13 

.  15 

.  17 

.  33 

4 

•  6 

•  7 

.  9 

.  11 

11 

•  13 

•  15 

.  17 

.  18 

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4 

•  6 

.  8 

.  10 

.  12 

12 

•  14 

•  16 

.  18 

.  20 

.  40 

4 

•  7 

•  9 

.  11 

,  13 

13 

•  15 

•  17 

.  20 

.  22 

.  43 

5 

•  7 

•  9 

.  12 

.  14 

14 

•  16 

•  19 

.  21 

.  23 

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5 

•  8 

•  10 

.  13 

.  15 

15 

•  18 

•  20 

.  23 

.  25 

.  50 

5 

•  8 

•  11 

.  13 

.  16 

16 

•  19 

•  21 

.  24 

.  27 

.  53 

6 

•  9 

•  11 

.  14 

.  17 

17 

•  20 

•  23 

.  26 

.  28 

.  57 

6 

•  9 

•  12 

.  15 

.  18 

18 

•  21 

•  24 

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.  30 

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6 

•  10 

•  13 

.  16 

.  19 

19 

•  22 

•  25 

.  29 

.  32 

.  63 

7 

•  10 

•  13 

.  17 

.  20 

20 

•  23 

•  27 

.  30 

.  33 

.  67 

7 

•  11 

•  14 

.  18 

.  21 

21 

•  25 

•  28 

.  32 

.  35 

.  70 

7 

•  11 

•  15 

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22 

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.  33 

.  37 

.  73 

8 

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•  15 

.  19 

.  23 

23 

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.  35 

.  38 

.  77 

8 

•  12 

•  16 

.  20 

.  24 

24 

•  28 

•  32 

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.  40 

.  80 

8 

•  13 

•  17 

.  21 

.  25 

25 

•  29 

•  33 

.  38 

.  42 

.  83 

9 

•  13 

•  17 

.  22 

.  26 

26 

•  30 

•  35 

.  39 

.  43 

.  87 

9 

•  14 

•  18 

.  23 

.  27 

27 

•  32 

•  36 

.  41 

.  45 

.  90 

9 

•  14 

•  19 

.  23 

.  28 

28 

•33 

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.  42 

.  47 

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10 

•  15 

•  19 

.  24 

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29 

•  34 

•  39 

.  44 

.  48 

.  97 

10 

•  15 

.  20 

.  25 

.  30 

30 

.  35 

.  40 

.  45 

.  50 

1.00 

11 

•  17 

.  22 

.  28 

.  33 

33 

.  39 

.  44 

.  50 

.  55 

1.10 

11 

•  17 

.  23 

.  28 

.  34 

34 

.  40 

.  45 

.  51 

.  57 

1.13 

20 

•  30 

.  40 

.  50 

.  60 

60 

.  70 

.  80 

.  90 

1.00 

2.00 

21 

.  32 

.  42 

.  53 

.  63 

63 

.  74 

.  84 

.  95 

1.05 

2.10 

21 

.  32 

.  43 

.  53 

.  64 

64 

.  75 

.  85 

.  96 

1.07 

2,13 

30 

.  45 

.  60 

.  75 

.  90 

90 

1-05 

1.20 

1.35 

1.50 

3.00 

31 

.  47 

.  62 

.  78 

.  93 

93 

1-09 

1.24 

1.40 

1.55 

3.10 

31 

.  47 

.  63 

.  78 

.  94 

94 

Months. 

MO 

1.25 

1.41 

1.57 

3.13 

40 

.  60 

.  80 

1.00 

1.20 

4 

1.40 

1.60 

1.80 

2.00 

4.00 

50 

.  75 

1.00 

1.25 

1.50 

5 

1.75 

2.00 

2.25 

2.50 

5.00 

60 

.  90 

1.20 

1.50 

1.80 

6 

2.10 

2.40 

2.70 

3.00 

6.00 

70 

1.05 

1.40 

1.75 

2.10 

7 

245 

2.80 

3.15 

3.50 

7.00 

80 

1.20 

1.60 

2.00 

2.40 

8 

2.80 

3.20 

3.60 

4.00 

8.00 

90 

1.35 

1.80 

2.25 

2.70 

9 

3.15 

3.60 

4.05 

4.50 

9.00 

1.00 

1.50 

2.00 

2.50 

3.00 

10 

3.50 

4.00 

4.50 

5.00 

10.00 

1.10 

1.65 

2.20 

2.75 

3.30 

11 

3.85 

4.40 

4.95 

5.50 

11.00 

1.20 

1.80 

2.40 

3  00 

3.60 

12 

4.20 

4.80 

5.40 

6.00 

12.00 

2.40 

3.60 

4.80 

6.00 

7.20 

24 

8.40 

9.60 

10.80 

12.00 

24.00 

3.60 

5.40 

7.20 

9.00 

10.80 

36 

12.60 

14.40 

16.20 

18.00 

36.00 

4.80 

7.20 

9.60 

12.00 

14.40 

48 

16.80 

19.20 

21.60 

24.00 

48.00 

TABLES  OF  LNTEREST  AT  SIX  FER  CENT. 

$300 

$dOO 

$mo 

$G00 

Days 

$700 

$800 

$900 

$1000 

.17 

5 

.07 

.08 

.lu 

1 

.12 

.13 

.15 

10 

.13 

.17 

.20 

2 

.23 

.27 

.30 

.33 

15 

.20 

.25 

.30 

.35 

.40 

.45 

.50 

20 

.27 

.33 

.40 

4 

.47 

.53 

.60 

.67 

2o 

.42 

.50 

5 

.58 

.67 

.75 

.83 

30 

.40 

.50 

.60 

6 

.70 

.80 

,90 

1.00 

35 

.47 

.53 

.70 

7 

.82 

,93 

1.05 

1.17 

40 

.53 

.67 

.80 

8 

.92 

1.07 

1.20 

1.33 

45 

.60 

.75 

.90 

9 

1.05 

1.20 

1.35 

1.50 

50 

.67 

.83 

1.00 

10 

1.17 

1.33 

1.50 

1.67 

55 

.73 

.92 

1.10 

11 

1.28 

1.47 

1.65 

1.83 

60 

.80 

1.00 

1.20 

12 

1.40 

1.50 

1.80 

2.00 

65 

.87 

1.08 

1.30 

13 

1.52 

1.73 

1.95 

2.17 

70 

.92 

1.17 

1.40 

14 

1.G3 

1.87 

2.10 

2.33 

75 

1.03 

1.25 

1.50 

15 

1.75 

2.00 

2.25 

2.50 

80 

1.07 

1.33 

1.60 

IG 

1.87 

2.13 

2.40 

2.67 

85 

1.13 

1.43 

1.70 

17 

1.93 

2.27 

2.55 

2  83 

90 

1.20 

1.50 

1.80 

18 

2.10 

2.40 

2.70 

3.00 

95 

1.27 

1.53 

1.90 

19 

2.22 

2.53 

2.85 

3.17 

l.CO 

1.33 

1.C7 

2.00 

20 

2.33 

2.67 

3.00 

3.33 

1.C5 

1.43 

1.75 

2.10 

21 

2,45 

2.80 

3.15 

3.50 

1.10 

1.47 

1.83 

2.20 

22 

2.57 

2.92 

3.30 

3.67 

1.15 

1.53 

1.C2 

2.30 

23 

2.63 

3.07 

3.45 

3.83 

1.20 

1.G3 

2.00 

2.40 

24 

2.80 

3.20 

3.60 

4.00 

1.25 

1.67 

2.08 

2.50 

25 

2.92 

3.33 

3.75 

4.17 

1.30 

1.73 

2.17 

2.60 

26 

3.03 

3.47 

3.90 

4.33 

1.C5 

1.83 

2.25 

2.70 

27 

3.15 

3.60 

4.05 

4.50 

1.40 

1.83 

2.33 

2.80 

28 

3.27 

3.73 

4.20 

4.67 

1.45 

1.92 

2.42 

2.90 

29 

3.38 

3.87 

4.35 

4.83 

1.53 

2.00 

2.50 

3.00 

30 

3.50 

4.00 

4.50 

5.C0 

I.Cj 

2.20 

2.75 

3.30 

33 

3.85 

4.40 

4.95 

5.50 

1.70 

2.27 

2.83 

3.40 

34 

3.97 

4.53 

5.10 

5.67 

3.00 

4.00 

5.00 

6.00 

60 

7.00 

8.00 

9.00 

10.00 

3.15 

4.20 

5.25 

6.30 

63 

7.35 

8.40 

9.45 

10.50 

3.20 

4.27 

coo 
O.OO 

6.40 

64 

7.47 

8.53 

9.C0 

10.67 

4.53 

6.00 

7.50 

9.00 

90 

10.50 

12.00 

13.50 

.15.00 

4.C5 

6.20 

7.75 

9.30 

93 

10.85 

12.40 

13.95 

15.50 

4.70 

6.72 

7.C3 

9.40 

94 
Months. 

10.97 

12.53 

14.10 

15.07 

6.00 

8.00 

10.03 

12.00 

4 

14.00 

16.00 

18.00 

20.00 

7.50 

10.00 

12.53 

15.00 

5 

17.50 

20.00 

22.50 

25.00 

COO 

12.03 

15.03 

18.00 

6 

21.00 

24.00 

27.00 

30.00 

13.50 

14.03 

17.60 

21.00 

7 

24.50 

28.00 

31.50 

35.00 

12.00 

16.03 

20.00 

24.00 

8 

23.00 

32.00 

36.00 

40.00 

13.50 

18.03 

22.50 

27.00 

9 

31.50 

36.00 

40.50 

45,00 

15.00 

20,03 

25.00 

30.00 

10 

35.00 

40.00 

45.00 

50.00 

1G.53 

22.03 

27.50 

33.00 

11 

38.50 

44.00 

49.50 

55.00 

13.00 

24.00 

30.00 

36.00 

12 

42.00 

48.00 

54.00 

60.C0 

33.00 

48.03 

60.00 

7  2.  CO 

24 

84.00 

9G.00 

108.00 

120.00 

54.00 

72.00 

90.00 

108.00 

36 

126.00 

144.00 

162.00 

180.00 

72.00 

_ 

96.00 

120.00 

144.00 

48 

168.00 

192.00 

216.00 

240.00 

TABLE  OF  INTEREST  AT  SEVEN  PER   CENT. 


i 

-DAI 

"■g^  — __ 

' 

DOlXi'S.  ' 

1 

0 

2 
0 

3  4 
0  0 

5 
0 

6 
0 

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10 
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11 

0 

12 

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